Decided on May 19,1986



S.Kalyanam, - (1.)C/Stay/109/86. - This is an application for dispensing with the prior deposit of the penalty of Rs. 10,000/- imposed on the petitioner by the Collector of Customs '(Appeals), Madras by order dated 18.3.86. The learned counsel Shri Chanderkumar for the petitioner submitted that the petitioner is a poor agriculturist owning only about a few acres of land leading to hand-to-mouth existence. It was further urged that the deposit of the penalty was dispensed with by the lower appellate authority on the basis of instructions from the Department that the petitioner is not possessed of adequate property. Heard the learned Senior Departmental Representative. Taking into consideration the facts that prior deposit of the penalty was dispensed with by the lower appellate authority and also having regard to the facts that the appeal itself is to be taken up and disposed of to-day, prior deposit of the penalty is dispensed with in the circumstances, pending disposal of the appeal.
(2.)C.Appeal No. 151/86 and G.Appeal No. 24/86/- Since the above appeals arise out of a common order of the Deputy Collector of Customs and Central Excise, Belgaum dated 24.8.84- and relate to a single transaction of the same party, they are taken up together and disposed of by a common order.
The Central Excise Officers of the Preventive Unit of Nipani Division in Belgaum Collectorate, on the basis of information on 20.4.83 at about 8.30 a.m. stopped a bus coming from Bombay. The appellant herein was one of the occupants of the bus. A search of his person by the officers resulted in the recovery of five gold biscuits of foreign origin with markings "Johnson Mathey London 999.0" said to be concealed in a pocket in his underwear. Since the appellant could not offer any satisfactory. explanation for the possession of the foreign gold, the gold was seized under mahazar as per law. The appellant also gave a statement before the authorities on 20.4.83 that on 19.4.83 at about 9 O'clock a person at Bombay gave him a packet containing the gold under seizure, directing the appellant to hand it over to a person at Hubli and the appellant agreed to do it for a remuneration of Rs. 300/- and kept the packet in his underwear pocket. It is in these circumstances after further investigations, proceedings were instituted against the appellant by the authorities under the provisions of Customs Act, 1962 as well as the Gold (Control) Act, 1968 which eventually culminated in the impugned orders now appealed against. Shri Chanderkumar, the learned counsel for the appellant submitted that no statement from the appellant has been recorded in respect of the alleged offence under the provisions of the Gold (Control) Act, 1968 under Section 70 or 83 of the Gold (Control) Act and a statement recorded under the provisions of the Customs Act, 1962 cannot be construed to be a statement under the provisions of the Gold (Control) Act and made use of by the Department against the appellant. It was further urged that the statement recorded from the appellant dated 20.4.1983, though inculpatory in nature, is in the nature of extra-judicial confession which requires corroboration in law. Even if any reliance is placed inasmuch as the same was retracted by the appellant by an affidavit on 13.6.83 it cannot be acted upon without adequate corroboration. The learned counsel further contended that the entire case of the Department rested on the seizure of the gold from the person of the appellant which is challenged. It was urged that the cross-examination of the mahazar witnesses had established that the gold under seizure was not recovered from the possession of the appellant and the seizing officer being inimically disposed towards the appellant for a period of about seven years and above, no reliance can be placed on his evidence as well. Therefore, it was contended that the Department is only left with the statement of the appellant dated 20.4.83 which having been retracted cannot be acted upon without corroboration

(3.)THE learned S.D.R. urged that the seizure of the gold from the underwear pocket of the appellant has been established by the mahazar drawn on the spot immediately after the seizure and the testimony of the seizing officer would prove and establish the same. THE statement of the appellant dated 20.4.83 being inculpatory in nature, is entitled to be accepted and the retraction on 13.6.83 being belated without any explanation, should be discarded as an afterthought. THE plea of enmity with the officer who effected the seizure has not even been probabilised and one Chowdhury on whose account, according to the appellant, the seizing officer was in enmity against the appellant, has not even been examined by the appellant. It was further urged that the appellant's son is in gold business being a goldsmith and in all probability the appellant was carrying the gold with him. Shri Chanderkumar, the learned counsel for the appellant who was present in Court in the pre-lunch session was not available in the post-lunch session and therefore, I did not have the benefit of hearing his reply in answer to the submissions of the learned S.D.R.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.