The CESTAT New Delhi ruled that the retracted statements cannot be the sole basis for action under the Customs Act without any independent corroborative evidence.
Facts
Information was received that M/s Bhola Jewelmart Pvt Ltd., was engaged in the manufacture of gold coins, gold jewellery and in trading of the same, from their premises situated in Karol bagh, New Delhi. It was gathered that Shri Rajesh Bhola, Director of the company was engaged in the illegal procurement of smuggled gold coins of foreign-made markings of King Edward and Elizabeth etc. Acting on this information searches were conducted at the shop/office premises. Certain documents and gold coins/bars including those having foreign marking and gold jewellery were detained for further investigation. Searches were also conducted at the residential premises of the Director and gold bars having foreign marking, gold coins with foreign markings and gold jewellery were detained.
Submissions
Counsel for the appellant submitted that it was important to note that the alleged confessional statements tendered by the appellant had been retracted before the Magistrate, Patiala Court. Therefore, he submitted that there remains no evidentiary value of such a confessional statement which had been subsequently retracted.
Authorised Representative submitted that the impugned order of releasing gold bullion of 1568.489 grams, setting aside the confiscation of jewellery of 6560.994 grams and of coins bearing the ISO mark of 4690.37 grams is bad in law being contrary to the facts and circumstances of the case and attendant provisions of law.
Decision
The division bench of Justice Dr. Rachna Gupta Member (Judicial) And Hemambika R Priya Member (Technical) noted that the critical evidence on which the entire case has been based is on the statements dated 27.04.2017, 28.04.2017 and 29.04.2017 of the appellant, wherein he has stated that he had no bills/invoice for the gold with foreign markings.
The bench found that the appellate authority has concluded that sufficient independent evidence needs to be adduced to corroborate the department’s contention regarding smuggled nature of the gold and in the absence of the same, it cannot be concluded that all the gold which was seized from the business & residential premises was smuggled.
The Tribunal held that the Appellate authority has rightly held in para 5.3.5 of the impugned order that “in view of the above, any conclusion that the seized gold, gold coins and jewellery which was not released and which has been subsequently confiscated were smuggled into India or made from the smuggled gold, on the basis of the statements of the appellant dated 27.04.2017, 28.04.2017 and 29.04.2017 is not sustainable”.
“It was more so when the accused had admitted under Section 108 of Customs Act, 1962 to have purchased ten foreign marked gold biscuits of lesser weight, heated them and hammered to obliterate the foreign marks. Since the lawful possession of the said foreign marked gold biscuits were not proved, the same were held liable to confiscation”, the Tribunal said.
Case title: Rajesh Bhola V/S Principal Commissioner, Customs (Preventive), New Delhi
Citation: CUSTOMS APPEAL NO. 51178 OF 2020
