Shri Balwant Raj Soni Vs Commissioner of Customs (Preventive) (CESTAT Kolkata)
CESTAT Kolkata held that gold bars/ pieces cannot be proved to be smuggled merely relying on the retracted statements without any other corroborative evidence. Accordingly, confiscation unjustified.
Facts- On 10.01.2020 the officers of DRI Patna along with officers of Gaya Customs intercepted two passengers namely Shri Rajesh Kumar Yadav(Noticee No.1) and Shri Umanath (Noticee NO.2) travelling by Train No.13009 (Howrah-DDN Doon Express) at 4.55 hrs. On examination of the said two passengers and their subsequent verification resulted in seizure of gold bars/pieces weighing 3999.590 gms. valued Rs.1,67,98,278/-. The said gold bars/pieces were seized by the DRI officers on the reasonable belief that they were smuggled into India from Bangladesh without any legal documents.
Post inquiry, a demand cum show cause notice was issued by DRI. The said notice was adjudicated by the Adjudicating Authority confiscating the gold u/s 111 of the Customs Act, 1962. Commissioner (A) upheld the order passed by the Adjudicating Authority. Accordingly, being aggrieved, present appeal is filed by the assessee.
Conclusion- We find that the Impugned Order mainly relied upon the statements of the Noticees 1 to 5 to establish the foreign origin nature of the gold. Other than the statements, there is no other evidence available on record to show that the gold were smuggled into the country from Bangladesh. It is incorrect to rely only on the statements of the co-accused without any corroboration, to prove the smuggled nature of the gold. It is a settled law that the statement of the co-accused cannot be relied without any independent corroboration.
In the case of Commissioner of Customs (Preventive), Lucknow vs Shakil Ahmad Khan, it has been held that confiscation based on retracted statements not sustainable.
Held that the gold bars/pieces cannot be confiscated based on the retracted statements alone.
FULL TEXT OF THE CESTAT KOLKATA ORDER
On 10.01.2020 the officers of DRI Patna along with officers of Gaya Customs intercepted two passengers namely Shri Rajesh Kumar Yadav(Noticee No.1) and Shri Umanath (Noticee NO.2) travelling by Train No.13009 (Howrah-DDN Doon Express) at 4.55 hrs. On examination of the said two passengers and their subsequent verification resulted in seizure of gold bars/pieces weighing 3999.590 gms. valued Rs.1,67,98,278/-. The said gold bars/pieces were seized by the DRI officers on the reasonable belief that they were smuggled into India from Bangladesh without any legal documents.
2. Samples of the gold bars/pieces were drawn and sent to CRCL, Kolkata for testing. The test report received from CRCL on 27.01.2020 revealed the purity of the gold as under:-
