Case Law Details
Mahendra Kumar Bajpai Vs Commissioner, Customs, Goods & Service Tax & Central Excise (CESTAT Allahabad)
Conclusion: Confiscation of eleven gold bars-MMTC marking/brand was upheld and penalty under section 112(b) was reduced to Rs. 2,50,000 as the reliability of statement of Mr. Bajpai recorded during investigation was doubtful, as he had alleged coercion and duress.
Held: Assessee was travelling from Kolkata to Kanpur by train. He was intercepted by the officers of Government Railway Police. On finding that he was carrying 13 pieces of gold bars, which appeared to be of foreign origin, he was detained. Police Officers thereafter called the Officers of Customs and handed over the foreign origin gold bars alongwith assessee to the Officers of Customs for further action at their end, under supurdaginama dated 30.01.2018. Before taking the possession of the gold bars from the GRP, Government approved valuer was called by the Officers of Customs who valued the gold weighing 12,993.30 gms. valued at Rs.3,98,89,431/-, as per his report dated 30.01.2018. Thereafter, the Customs Officers brought assessee to their office alongwith the gold for interrogation and for further investigation. Assessee did not produce any documents of sale/ purchase/ transportation with respect to the recovered gold. He further stated that as per his knowledge these gold bars had been brought to India from Bangladesh through off route by way of smuggling. Further, the gold bars were also bearing the marking normally affixed on the gold bars by the foreign manufacturers. Thus, it appeared to Officers of Customs that gold bars were brought into India from Bangladesh in violation of the provisions of Section 7(1)(c), 11 and 46 of the Customs Act, 1962 read with Section 123 of the Customs and read with Regulation 3(2&3) of Foreign Trade (Development and Regulation) Act, 1992 and also Rule 11 & 12 of the Foreign Trade (Regulation) Rules, 1993. Hence, detained goods appeared liable to confiscation under Section 111 of the Act. The Customs Officers seized the gold in question under Section 110 in the presence of two independent witnesses vide seizure order of even date. Further, two mobile phones – Oppo & Samsung and two bags were also recovered, as the two bags were used for carrying of gold, also appeared liable to be confiscated under Section 119 of the Customs Act. It was held that in view of foreign markings on 11 out of 13 gold bars seized, assessee failed to discharge the onus under Section 123. The allegation of smuggling through Bangladesh border was only presumption by Revenue, not established. Assessee remained in jail for about 18 months (From 1 February 2018 to July 2019). The order in original was passed on 29.3.2019, thus Mr. Bajpai did not have proper opportunity to defend himself. Two of the gold bars were of Indian Brand MMTC, total weight 1999.100 gms, valued at Rs. 61,37,237/-. Assessee was a person of small means, and was only a carrier. The reliability of statement of Mr. Bajpai recorded during investigation was doubtful, as he had alleged coercion and duress. The complicity of Mr. G. Agarwal was not established. Only evidence brought on record was the evidence of frequent calls (as per CDR) between assessee, and the statement of co-accused, which could not form the sole basis of imposing penalty. Mr. G. Agarwal had disowned the seized goods at the first instance, and also denied any connection of employer-employee or Principal – Agent with assessee. Nothing incriminating was found from Mr. G. Agarwal in the follow up search at his residence and business premises,” the CESTAT said. The Tribunal ruled that the penalty under Section 112(b) on assessee was reduced to Rs. 2,50,000, as he was only a carrier, and a person of small means.
FULL TEXT OF THE CESTAT ALLAHABAD ORDER
The appellants herein are in appeal against order-in-appeal passed by the Commissioner (Appeals), by which the absolute confiscation of seized 13 pieces of gold bars weighing 12,993.30 gms. valued at Rs.3,98,89,431/- have been confirmed, and further penalty imposed Rs.25,00,000/- under Section 112(b) of the Act on Shri Mahendra Kumar Bajpai and penalty of Rs. 12,00,000/- under Section 112(b) of the Act on Shri Girish Agrawal have been confirmed.
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