C.T. SHAMSUDEEN Vs. CCE & C

JUDGEMENT

(1.) THIS appeal of Sri C.T. Shamsudeen, is directed against confiscation of three gold bars weighing 3011.100 grams seized from him and imposition of penalty of Rs. 10,000. Facts of the case are that these gold bars were seized on 23.2.1995 by the police from inside a bag which was in the possession of the appellant when he was travelling by an Autoriksha. Sri Shamsudeen, in his statement to the Customs Authorities on 24.2.1995, explained that the gold under seizure was brought from abroad by concealing inside an electric motor by one Sri C.P. Abdul Rahmankutty of Vengara. In another statement on 13.3.1995, the appellant confirmed the explanation that he gave in his previous statement. The only difference in the explanation of 13.3.1995 was that smuggling of the gold was organised by one Sri Hamsa, and not by Sri Ismail. During the adjudication proceedings, Sri Shamsudeen changed his version and submitted that the gold in question was purchased by Sri Kunikkakathu Hydro from one Mohammed Sherif of Bombay and therefore the allegation that the gold was smuggled is not correct. Sri Shamsudeen had stated on 24.2.1995 that the gold bars had been affixed inside the electric motor with glue, and the bars had got bent in the process of being concealed in the electric motor. Test of the seized gold bars by the Chemical Examiner of the Customs confirmed the presence of glue on one side of the gold bars, and also the fact that gold bars had got bent. In the order of adjudication, the Collector of Customs held that gold had been brought into the Country in violation of the prohibitions under the law in view of the presence of foreign markings and the purity of the gold 99.80% confirmed by chemical test and the statement of Sri Shamsudeen that gold had been concealed in the electric motor on account of the presence of glue and the bending of the gold bars. He also held that subsequent statement of Sri Shamsudeen regarding purchase of gold by Sri Kunikkakathu Hydro from one Sri Mohammed Sherif had no creditability since the facts stated in his earlier statement had been confirmed by chemical test. He therefore, confiscated the gold, under seizure, under Sec. 111(d) of the Customs Act, 1962, and also imposed a penalty of Rs. 10,000 under Sec. 112(b) of the Customs Act, 1962. These findings have been challenged in the present appeal.

(2.) APPELLANT has not attended today's hearing or arranged representation through counsel in spite of notice. We are, therefore disposing of the appeal based on the records after hearing Sri S. Sankara Vadivelu, Learned DR.

(3.) WE find from the records and the submissions made before us that there is no dispute about the foreign origin of the gold and that they were imported into the country. Sri Shamsudeen, in his statement on the day after seizure, had explained that gold had been smuggled into the country by concealing inside the electric motor. He also explained the modus operandi adopted by stating that gold bars had been stuck inside the motor by affixing with glue and that gold bars got bent in the process of being so concealed. He also named certain persons as the people involved in bringing the gold in this manner. Facts stated in his statement were found to be correct when seized gold was subjected to test by Chemical Examiner. He confirmed that the gold bars had synthetic resin coated on one side indicating that resin glue was used for affixing the gold bars inside the electric motor. The gold bars were also found to be bent. Thus, the important particulars furnished by the appellant were found to be correct. As against this statement, the later explanation was that gold had been purchased by another person from a person in Bombay. This explanation lacks particulars and corroboration of any kind. We are, therefore, in agreement with the findings of the Collector that the first statement of the appellant contained correct facts, and his later explanation lacks credibility. A perusal of the receipt given by Mohammed Sherif purported to be of Bombay, shows the hollowness of the claim, that the gold bars were purchased from him. The receipt is a cash receipt, confirming receipt of Rs. 13,99,160 dated 15.10.1994, being the sale consideration of Three kgs. (Three pieces) of gold, which he sold on that day. Nothing is stated about the particulars of the gold, as to their markings, purity, or any other details. The receipt also is more than Six months, prior to the seizure of the goods. It is hard to believe that such a big consignment of gold could be just stored for six months without any further transaction and conversion into gold ornaments. In view of these findings, we are of the opinion that the Collector was right in holding that gold had been brought into India by concealing it in the electric motor. Importing goods by concealment involves violation of several laws. Even though import of gold was not entirely prohibited from 1991, only certain categories of persons, i.e., passengers were eligible for importing gold. Such import was also liable to payment of duty in foreign exchange. The importer of the goods are also required to declare the goods to the Customs Authorities either through bill of entry or in Baggage declaration. As none of these legal requirements have been observed in the import of the consignment in question, there is no reason to find fault with the findings of the Collector, that the goods had been imported contrary to the provisions of the Customs Act and other laws and is therefore liable to confiscation under Sec. 111(d) of the Customs Act, 1962.