- (1.) This appeal is at the instance of an appellant before the Customs, Excise & Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, and is directed against an order dated 16th September, 2004 passed by such Tribunal dismissing the appeal preferred by the appellant and upholding the order of confiscation under Sections 111(b) and 111(d) of the Customs Act, 1962 read with Section 121 of the said Act and imposition of penalty under Section 112 of the said Act. Being dissatisfied, the appellant has come up with the present appeal. The facts giving rise to filing of this appeal may be summed up thus: a) The Officers of the Directorate of Revenue Intelligence, Siliguri Regional Unit, along with the Officers of Coochbehar Central Excise Division, apprehended one Md. Sahanat Ali while he got off from a bus arriving from Dinhata. On being asked, he submitted that he was carrying seven pieces of gold biscuits of foreign origin concealed inside his anklets. On being further asked, the said Md. Sahanat Ali stated that one Shri Rakesh Somani, son of Shri Nand Kishore Somani, had given the said seven gold biscuits for delivery to one Shri K. C. Banik at Coochbehar Mini Bus Stand and the gold biscuits were purchased illegally from different sellers who brought them in an unauthorized manner into India. He named another Shri Babla Ghosh of Dinhata and one Shri Sohin Bhai of Rangpur, Bangladesh. Md. Sahanat Ali was found to carry a small amount of Bhutanese Currencies in the pocket of the shirt worn by him and he stated that the Bhutanese Currencies were given to him by one Rakesh Somani for getting the same changed from any seller engaged in unauthorized money changing business. b) The gold was weighed in presence of Md. Sahanat Ali and two other witnesses. Md. Sahanat Ali could not produce any valid document in support of the gold biscuits and the Bhutanese Currencies, which were seized under Section 110 of the Customs Act on the reasonable belief that those were imported into India in contravention of the provisions of Sections 3 and 4 of the Foreign Trade Development and Regulations Act, 1992 read with Section 11 of the Customs Act, rendering themselves liable for confiscation under Sections 111 and 121 of the Customs Act. c) A statement was recorded under Section 108 of the said Act from Md. Sahanat Ali wherein he reiterated what had been confessed by him during the course of initial interrogation. Over and above, he further deposed that he was an employee of Shri Nand Kishore Somani for the last five to six years. He knew that his master was engaged in the illegal foreign exchange business in close association of one Shri Babla Ghosh of Boarding Para, Dinhata and another Sohin Bhai of Bangladesh. In his statement, Md. Sahanat Ali denied having any knowledge of the address of Shri K. C. Banik, but he knew him by face only, to whom he was directed by his master to hand over the confiscated gold biscuits at Coochbehar Mini Bus Stand. He further deposed that on earlier three occasions, he had delivered such goods to three different persons. d) Investigation was carried out by the D.R.I. in the case and a show cause notice was issued to the appellant under Section 124 of the Customs Act and to the persons implicated in the instant case proposing confiscation of the gold biscuits and the Bhutanese Currencies under Sections 111(b) and 111(d) and 121 of the Customs Act and penal action under Sections 112 and 117 of the said Act. e) The adjudicating authority confiscated the gold biscuits under Sections 111(b) and 111(d) of the Customs Act. The Bhutanese Currency was confiscated under Section 121 of the said Act and the anklets used for concealing the gold biscuits were also confiscated under Section 119. Personal penalties were imposed at different rates considering the gravity of offences on those appellants. f) Being dissatisfied with the order of the adjudicating authority, all the appellants filed individual appeals to the Commissioner (Appeals) who vide his order rejected the three appeals and confirmed the order of the lower authority. g) Being dissatisfied, the appellants preferred three appeals before the Tribunal below and by the order impugned in this appeal, the Tribunal has dismissed the appeals brought by the three appellants. h) Being dissatisfied, Nand Kishore Somani alone has preferred the present appeal under Section 130 of the Customs Act. Mr. Roy, the learned Advocate appearing on behalf of the appellant, strenuously contended before us that the Tribunal below as well as the other authorities below erred in law in totally overlooking the fact that the customs authorities failed to discharge the burden of proving the fact that the gold biscuits were of foreign origin brought to India improperly by the appellant. Mr. Roy contends that his client has proved the receipt granted by a seller having appropriate licence to sell gold and thus, the moments of such receipt was produced and the initial burden was discharged, the onus shifted upon the customs authority to show that such receipt was a manufactured one. Mr. Roy contends that in the absence of examination of the seller of such gold biscuits, as reflected from the receipt produced by the appellant, the Tribunal below ought to have held that the appellant had discharged his initial onus of proving the fact that the said gold biscuits were not imported illegally from Bangladesh, as alleged.
(2.) Mr. Roy further submits that the alleged confession of Sahanat Ali having been subsequently retracted, the authorities below erred in law in relying upon the confession originally made by Sahanat Ali. In support of his further contention, Mr. Roy placed strong reliance upon the following decisions: 1. S. K. Chains Vs. Commissioner of Customs (Prev.), Mumbai, 2001 127 ELT 415; 2. Samir Kumar Roy Vs. Commissioner of Customs (Prev.), Calcutta, 2001 135 ELT 1036; 3. Rasilaben H. Rathod Vs. Commissioner of Customs, Ahmedabad, 2008 226 ELT 641; 4. Commissioner of Customs (Prev.), West Bengal Vs. Sadhan Kr. Das, 2010 251 ELT 551; 5. Commissioner of Customs (P), W.B. Vs. Golak Chandra Kamilla,2006 205 ELT 665; 6. Commissioner of Customs (Preventive) Vs. Puni Dhapa Lokeswara Rao, 2009 248 ELT 141; 7. Kadarbhai J. Vora Vs. Commissioner of Customs, Ahmedabad, 2004 170 ELT 555; 8. Rup Chand Jain Vs. Collector of Customs (Preventive), Calcutta, 1996 88 ELT 335; 9. Commissioner of Customs, Jaipur Vs. Ashutosh Dubey,2004 176 ELT 175; 10. Mohini Bhatia Vs. Commissioner of Customs, Sahar, Mumbai,1999 106 ELT 485.
(3.) Mr. Bharadwaj, the learned Advocate appearing on behalf of the Customs authorities, however, has opposed the aforesaid contention advanced by Mr. Roy and has submitted that the Tribunal below rightly disbelieved the version of the appellant and in the case before us, the receipt produced by the appellant did not reflect the fact that those biscuits mentioned therein were really related to the seven biscuits confiscated by the customs authority. Mr. Bharadwaj further submits that there was no proper explanation of even the one of eight gold biscuits which the appellant claimed to have already transformed into ornament and in the absence of such explanation, the Tribunal below rightly disbelieved the case of the appellant. Mr. Bharadwaj further submitted that even in the receipts produced by the appellant, there was no description of the gold biscuits whereas in the seized one it is specifically mentioned that those are of PAPUA NEW GUINEA origin. Mr. Bharadwaj further submits that Narendra Sharma, the alleged purchaser from M/s. Rara Brothers Pvt. Ltd. also was not produced before the Customs authorities and the notice issued to his address came back with the endorsement not found . According to Mr. Bharadwaj, on consideration of all the aforesaid factors, the Tribunal below rightly held that the appellant could not explain lawful acquisition of those seven gold biscuits. He further prays for dismissal of the appeal.;