- (1.) This appeal under Section 130 of the Customs act, 1962 (the Act, in short) is directed against the order of the Member, Technical, Customs, Excise & Service Tax Appellate Tribunal dated 10.10.2005 by which he has partly allowed the appeal against the order of the Commissioner, Customs and Central Excise dated 4.11.1999, dismissing the appeal against the order of the Joint Commissioner, Customs Lucknow for absolute confiscation of 559.700 grams of 9 pieces of gold valued at Rs.2,23,880/- seized on 16.6.1999, in exercise of his powers under Section 122 of the Act. By the same order the Joint Commissioner, Customs also ordered confiscation of Maruti Van No.UP 53D 2052 under Section 115 (2) of the Act, at the same time giving option to redeem the Maruti Van on payment of fine amount to Rs.15,000/-. The Commissioner also imposed penalty on the appellants of Rs.15,000/- and Rs.10,000/- respectively under Section 112 of the Act. The Tribunal in its order dated 10.10.2005 under appeal has partly allowed the appeal only to the extent of reducing the penalty of Shri Sanjay Soni from Rs.10,000/- to Rs.5000/-.
(2.) We have heard Shri R.R. Agarwal assisted by Shri Suyash Agarwal for the appellants. Shri Sambhu Chopra appears for the department.
(3.) Brief facts giving rise to the appeal are:- "That on 16.6.1999, at about 1850 hours, officials of Customs of Gorakhpur Division, on the basis of the alleged specific information, intercepted Maruti Van No.UP-53D-2052 near Munshi Prem Chandra Park. In the car, there were two occupant i.e. the appellant and Shri Sanjay Soni. It is alleged that the appellant was searched and seven big size and two small size pieces of gold were recovered from the front pocket of the appellant's pant and the same were of 559.700 grams and totally valued at Rs.2,23,000/-. It is further alleged that the pieces of hammered to erase the foreign origin marking and one piece showed explicit Chinese origin marking on it and the appellant and his driver, Sanjay Soni, failed to produce any documentary evidence for lawful importation, acquisition and possession of the said gold and he was interrogated and in his statement, it is alleged that he has stated that he had purchased the said gold pieces through a broker of Urdu Bazar, Gorakhpur for selling the same at Balaharganj and as per the instructions of the broker, they erased the marking by hammering and Sanjay Soni, his nephew. It is further alleged that Sanjay Soni in his statement stated that he has no concern with the purchase of the said gold biscuits. The gold was seized on the reasonable belief that the same has been imported into India from Nepal in contravention of notification No.9/96 dated 22.1.1996, issued under Section 11 of the Act and as such, the same is liable to be confiscated under Section 112 (d) and 121 of the Act (ibid) and as such, the same was seized. The car was also seized as the same has been used for transportation of the said gold, as the same was also liable to confiscation under Section 115 of the Act ibid. Statement recorded under Section 107 of the Act on 16.6.1999 was confirmed by the appellant under Section 108 of the Customs Act, 1962 on 17.6.1999. The appellant in his bail application has specifically stated before Special CJM on 3.7.1999 that he had purchased the said gold from Dhan Cholia Sons, Chandni Chowk, Delhi, on 14.6.1999 and produce the photocopy of Bill. Statement of Shri Badri Narain Shara, the owner of Dhan Cholia Sons was also recorded and he has confirmed that he had sold the said gold to the appellant vide Bill No.4 and 11 pieces were sold to him and only one bill was issued on the said date. A copy of the receipt is enclosed. Different findings were given and the gold was seized. A show cause notice was issued to the appellant, calling upon as to why the seized gold should not be confiscated under Section 111 (d) and 120 of the customs Act and why the Maruti Van should not be confiscated under Section 115 (2) of the Customs Act, 1962, and why the penalty should not be imposed under section 112 (b) of the Customs Act. Panchnama, statement of the applicant and Sanjay Soni and other documents were relied upon. The show cause notice was adjudicated by the Jt. Commissioner of Customs and Shri Davender Singh, Jt. Commissioner of Customs, Lucknow, after hearing the matter, ignored the contentions of the appellant and confiscated absolutely the 9 pieces of gold under Section 120 and 111 (d) of the Act and imposed the penalty of Rs.15,000/- under Section 112. Maruti Van UP-53D-2052 was also confiscated under Section 115 (2) of the Act and option was redeem the same was given on payment of fine of Rs.15,000/-. Against the order of respondent no.2, bearing No.220 (181) / 99 JC-GKP/99 dated 4.11.1999, the appeal was filed before the respondent No.2. The appeal was adjudicated by respondent No.2, and the findings given by respondent No.3 were upheld by the respondent No.2.";