Vijender Singh And Anr. vs Commissioner Of Customs, Amritsar

The appellants are in appeal against the impugned order.

The facts of the case are that the appellant No.1 namely Sh. Vijender Singh was working as Superintendent in Customs Commissionerate Amritsar

and was assigned the duties at counter No.1 in arrival hall of International Airport, Amritsar on 06.07.2015. On that day, there were neither any pax

reported nor cleared from counter No.1, but two pieces of gold weighing 394.570 grams valued at Rs. 10,25,882/- was recovered from a Hyundai

Santro car of the appellant bearing registration No. PB-02-AP-3575 parked in the arrival side staff parking area of the airport. The said gold, car and

mobile phone Samsung make bearing No. 9815095357 were seized under Section 110 of the Customs Act, 1962. On search of the appellant personally

and his residential premises, nothing incriminating was recovered. The gold recovered from the appellant was absolutely confiscated by the

adjudicating authority under Section 111(d), (e), (j) & (l) of the Customs Act, 1962 along with packing material thereto under Section 119 of the

Customs Act, 1962. The Hyundai Santro bearing registration No. PB-02-AP-3575 was also ordered absolute confiscation under Section 115(2) of the

Act. A penalty of Rs. 1,00,000/- was imposed on the appellant under Section 112 of the Act, but the adjudicating authority refrained from imposing

any penalty on Smt. Usha Devi (appellant No.2). The appellant challenged the order of the adjudicating authority before the ld. Commissioner

(Appeals), who rejected the appeal filed by the appellant No.1 i.e. Sh. Vijender Singh and imposed a penalty of Rs. 1,00,000/- on appellant No.2 i.e.

Smt. Usha Devi. Against the said order, both the appellants are before me.

3.1 The ld. Counsel for the appellants submits that in the case of Smt. Usha Devi in Appeal No. C/60043/2020, the adjudicating authority refrained

from imposing any penalty on the appellant and the said order was accepted. No appeal has been filed against the said order by the Revenue;

therefore, the ld. Commissioner (Appeals) has gone beyond the scope of the appeal filed by the appellant. The appellant has challenged the

adjudication only to the extent of absolute confiscation of the gold and Hyundai Santro car as both were belong to her and no show cause notice has

been issued by the ld. Commissioner (Appeals) to the appellant for proposing penalty. Therefore, penalty imposed on the appellant namely Smt. Usha

Devi is not sustainable.

3.2 With regard to the appeal filed by Sh. Vijender Singh, it is his submission that the impugned proceedings are bad in law and not sustainable being in

defiance to the provisions of Section 155(2) of the Customs Act, 1962. In this case, the ld. appellate authority held that the provisions of Section 155(2)

of the Act are not applicable as the appellant had acted in deliberate and willful defiance of the provisions of the Act. It is his submission that the

appellant neither cleared any pax on 06.07.2015 nor statement of any passenger brought on records to substantiate involvement of the appellant in the

alleged offence. The Department failed to appreciate that International Airport is highly sensitize security zone and are monitored by CCTV and

number of security agencies. There is neither any CCTV clip nor statement of pax nor of any security official’s brought on record to substantiate

involvement of the appellant in the alleged offence. Notice was issued to the appellant under Section 155 fo the Customs Act, 1962 on 06.06.2016.

The said notice is not legal and hit by time bar as Section 155(2) of the Act stipulates that the officer be served a month’s previous notice in

writing of the intended proceedings and such proceedings shall not be commenced after expiry of three months from the accrual of cause.

3.3 In the instant case, the show cause notice was issued on 31.12.2015, whereas the notice under Section 155 was issued on 06.06.2016, which is

barred by limitation, therefore, the proceedings of show cause notice under reference is bad in law.

3.4 It is further submitted that the ld. Joint Commissioner (Prev.) Customs, Amritsar vide letter dated 29.09.2016 has given clarification for issuance of

notice under Section 155 of the Act vide letter dated 06.06.2016. Assumingly that the clarification given by the Department vide letter dated

29.09.2016 is correct, even than the proceedings initiated prior to issue of notice dated 06.06.2016 under Customs Act by the Department is itself

barred by limitation. To support his contention, he relied on the decision of this Tribunal in the case of CC & CE vs. Rajiv Kumar Aggarwal â€" 2007-

TIOL-1736- CESTAT-BANG.

3.5 He further submits that the whatsapp messages allegedly exchanged among Mobile No. 9815202128 and 9814409166 with Mobile No.

9815095357 of the appellant is a digital device. There is neither any expert opinion nor any forensic report thereto brought on record confirming

whatsapp message remitted to/from Mobile No. 9815095357 nor call details from mobile company brought on record. Therefore, the appellate

authority failed to appreciate that the appellant in reply to show cause notice has categorically stated that whatsapp conversation is manipulated in

order-in-original. Further, in appeal before the Commissioner (Appeals), the appellant has specifically mentioned that whatsapp text message prima-

facie reveals it is an cropping and it has also been mentioned that whatsapp conversation alleged in the show cause notice but no copy thereto

retrieved from mobile has been brought on record. Therefore, it is submitted that entire findings are based on so called whatsapp which are said to

have been retrieved from various mobile phones as mentioned in the show cause notice, but neither the said mobile phones data nor CCTV clips nor

DVR were made RUD to the show cause notice by the Department nor the certificate of the person who retrieved the data brought on record. There

is nothing corroborative brought on records regarding alleged whatsapp conversation. To support this, he relied on the decision of the Hon’ble

Apex Court in the case of Anvar P.V. vs. P.K. Basheer â€" 2017 (352) ELT 416 (SC) to say that the method of providing the electronic evidence by

referring Section 65A and 65B of the Evidence Act, 1873 and the authorities below have failed to appreciate that the electronic evidences relied upon

without satisfying the requirement of Section 65A and 65B of the Evidence Act are not inadmissible evidence.

3.6 The ld. Counsel further submitted as under:

“- Modus Operandi: Concealment of gold in his person and than in his own car. There is neither any statement of the appellant nor of

any person regarding concealment of gold in person by the appellant and then shifting to his own car.

- The airport is highly sensitive and monitored by CCTV cameras besides working of different intelligence agencies like RAW, IB, CISF,

Security of Airport Authority of India etc. The “staff parking outside of arrival hall†of SGRDJI Airport is also fully monitored by CCTV

cameras. There are nothing brought on record that the appellant found concealing gold or moving to his Santro Car registration No. PB02-

AP-3575 on 06.07.2015.

- Neither pax Sh. Sushil Chauhan nor pax Sh. Davinder Kumar in their statements deposed any involvement of the appellant in their

clearance from baggage hall on 06.07.2015.

- The perusal of panchnama dt. 06.07.2015 reveals that one piece of gold was having marking “EMIRATESâ€, and an engraving of

eagle (only head and wings of the eagle) and the other gold piece was having marking “GOLD†written on it. The perusal of RUD-2

further reveals that there is no mention of foreign or other marking on seized gold. Further, the inventory of goods certified by judicial

magistrate 1st Class, Amritsar on 19.05.2017 also does not confirm 2 gold pieces weighing 394.57 gram were bearing any foreign market.

- The appellant was admittedly present at the place of incidence and perusal of panchnama reveals panchnama proceedings dt. 06.07.2015

was not carried out in the presence of the appellant. The appellant made specific remarks on the body of panchnama on 06.07.2015 and it

reads as “I have just read no proceedings done in my presence and before meâ€​.

- There is nothing brought on record to prove that 394.57 grams of gold recovered was of foreign origin and was brought by Pax arrived

by Air India flight No IX-192 on 06.07.2015 at SGRDJI Airport. The appellant submitted that said gold belongs to his wife and was given by

his father-in-law to his daughter (appellant’s wife) who has expired on 04.11.2012. The statements dt. 15.07.2015, 17.07.2015 and

17.08.2015 of Usha Devi W/o appellant refers.

- The ld. Appellate Authority incorrectly ordered confiscation of impugned goods under section 111 (b) & 111 (d) of Customs Act without

appreciating the facts on records.

- The penalty has been incorrectly and arbitrarily imposed without appreciating the submissions of the appellants.â€​

4.1 On the other hand, the ld. A.R. for the Revenue submits that the possession of smuggled gold and facilitation of smuggling of gold as alleged in the

show cause notice cannot be claimed as anything done or purported to be done in good faith of pursuance of the Customs Act. The period of limitation

and issuance of prior notice under Section 155(2) of the Act is for initiating proceedings in respect of an officer who has acted in good faith in

pursuance of the Customs Act, whereas in this case the appellant has acted in defiance and violation of the Act. To support this, he relied on the case

laws P.N. Ramaswami, J.S. Sakuntla Bai vs. Customs Inspector, Reddichavadi â€" 2000 (126) ELT 166 (Mad.) and Mukesh Gupta vs. CCE, Meerut

â€" 2010 (261) ELT 251 (Tri. Delhi).

4.2 He further submits that the appellant has adopted this plea that the electronic evidences relied upon without satisfying the requirement of Section

65B of Indian Evidence Act are inadmissible evidence and accordingly incorrectly relied upon. It is his submission that the modus operandi of

smuggling of gold in connivance of appellant No.1 has been confirmed vide admitted statements recorded under Section 108 of the Customs Act, 1962

of Sh. Sanjeev Kumar @ Billu, Sh. Sanjeev Kumar @ Sonu, Sh. Sushil Chauhan, Sh. Davinder Kumar, Sh. Virendra Verma and others and none of

the statements have been retracted. It is settled law that what is admitted need not be proved as held by the Hon’ble Supreme Court in the case

of CCE, Madras vs. Systems & Components Pvt Ltd â€" 2004 (165) ELT 139 (SC). He also relied upon the following case laws:

(a) Copier Force India Ltd vs. CCE, Chennai â€" 2008 (231) ELT 224 (Tri. Chennai)

(b) Shri Ulaganayagi Amman Steels vs. CCE, Trichy â€" 2008 ( 231) ELT 434 (Tri. Chennai)

(c) CCE, Trichy vs. Shri Ulaganayagi Amman Steels â€" 2009 (241) ELT 537 (Tri. Chennai)

4.3 He further submits that the statements recorded under Section 108 of the Customs Act having evidential value as per the decision of the

Hon’ble Apex Court in the case of K.I. Pavanny vs. Asst. Coll., Cochin â€" 1997 (90) ELT 241 (SC). In this regard, he relied on the following

case laws:

(i) Asst. Coll. of C.E., Rajamudry vs. Duncan Agro Ind. Ltd. â€" 2000 (120) ELT 280 (SC)

(ii) Naresh J Sukhwani vs. UOI â€" 1996 (83) ELT 258 (SC)

(iii) Ramesh Chandra Mehta vs. State of West Bengal â€" AIR1970-SC

(iv) Satnam Singh vs. Asst. Commr. of Customs â€" 2012 (275) ELT 0535 (P&H)

4.4 He further submits that as smuggled gold is notified goods in terms of Section 123 of the Customs Act, 1962, therefore, burden of proof lays on the

appellant. In this regard, he relied on the following case laws:

(i) Indru Ramchand Bharvani vs. UOI â€" 1992 (59) ELT 201 (SC)

(ii) CC, Cochin vs. Om Prakash Khatri â€" 2019 (366) ELT 402 (Kerala)

(iii) CC, Kolkata vs. Sudhir Saha â€" 2004 (172) ELT 26 (Calcutta)

(iv) Girindra Bijoy Sahu vs. CC, West Bengal â€" 2001 (137) ELT 619 (Tri. Kolkata)

(v) A.S.A. Kabir vs. CC, Madras â€" 1997 (89) ELT 595 (Tribunal)

Heard the parties and considered the submissions.

Appeal No. C/60043/2020 â€" This appeal is against the imposition of penalty of Rs. 1,00,000/- on the appellant namely Smt. Usha Devi. It is a fact

on record that the adjudicating authority refrained from imposing any penalty on Smt. Usha Devi and no appeal has been filed against the said order

before the ld. Commissioner (Appeals) by the Revenue. In these circumstances, the ld. Commissioner (Appeals) has gone beyond his jurisdiction by

imposing penalty of Rs. 1,00,000/- on the appellant, therefore, I hold that penalty on the appellant namely Smt. Usha Devi is not sustainable.

Accordingly, the same is set aside and the appeal is allowed.

In Appeal No. C/60042/2020 â€" The ld. Counsel for the appellant submits that in terms of Section 155(2) of the Customs Act, 1962, a notice within

three months was required to be given to the appellant of the alleged offence. Admittedly, the notice has been given to the appellant on 06.06.2016,

which is beyond the time limit prescribed under Section 155 (2) of the Customs Act, 1962. Moreover, the ld. A.R. relied on the judgments in the cases

of P.N. Ramaswami, J.S. Sakuntla Bai (supra) and Mukesh Gupta (supra). In both the cases relied upon by the ld. A.R., it has been held that when

there is a malafide intention of the officers, there is no requirement to issue the notice under Section 155 of the Act. If the notice under Section 155 of

the Act was not required then why the notice was issued. Admittedly, no notice under Section 155 of the Act has been issued in the said cases; but in

the case in hand; admittedly, a notice under Section 155 of the Act has been issued on 06.06.2016 which is highly time barred.

The case is based on the various statements and whatsapp messages recorded during the course of investigation. For better appreciation, the

statement of the appellant is required to be taken on record and the same is extracted herein below:

Further, the statement of Smt. Usha Devi is also relevant to the facts of this case as she claims to be the owner of the impugned gold and the same is

extracted herein below:

Further, the Revenue has relied upon the various statements of Sh. Sanjeev Kumar @ Billu, Sh. Sanjeev Kumar @ Sonu, Sh. Sushil Chauhan, Sh.

Davinder Kumar and Sh. Virendra Verma. All of them in their statements have stated that the appellant was helping them for clearance of the gold,

but for the gold in question which is recovered from the car parked in Airport parking, it has been categorically stated that the 400 grams of gold

seized on 06.07.2015 from Sh. Vijender Singh’s vehicle did not belong to them. The same has been recorded in para 8.2 of the show cause notice

which is reproduced here as under:

On going through the statement of Sh. Vijender Singh, the appellant, the statement given on the date of incident at the time of recovery of the

impugned gold, the statement was recorded under Section 108 of the Customs Act, 1962 which is exculpatory. Further, the statement of Smt. Usha

Devi, wife of the appellant was also recorded under Section 108 of the Customs Act, 1962 who claims to be the owner of the gold in question. In

support of her statement, she has produced various corroborative evidences, but all these were discarded by the Revenue without giving in credence

to them which is not correct. Further, the statements of the persons recorded under Section 108 of the Customs Act, 1962 heavily relied upon by the

Revenue have stated that the 400 grams of the gold seized on 06.07.2015 from the vehicle of the appellant does not belong to them, which clearly

shows that the impugned gold is otherwise belongs to the appellant. The Revenue has partly picked the statements of the third party namely Sh.

Sanjeev Kumar @ Billu, Sh. Sanjeev Kumar @ Sonu, Sh. Sushil Chauhan, Sh. Davinder Kumar and Sh. Virendra Verma to implicate the appellant in

this case but as they have clearly stated that the gold in question does not belong to them and this appeal is restricted to absolute confiscation of the

gold in question. Therefore, the statements given by the persons relied upon by the Revenue are also support the case of the appellant.

The case before me is of seizure of 394.570 grams of gold seized on 06.07.2015 from the appellant’s car bearing registration No. PB-02-AP-

3575 and the appellant said that the said gold does not belong to him. Further, the wife of the appellant claims the ownership of the same and the

statements stated herein above, have corroborated with evidence by way of certificate issued by the bank that on 26.05.2015, she has operated the

locker to take out the gold. Further, railway tickets booked on 06.07.2015 at 11:08 AM for 07.07.2015 for the departure from Amritsar to New Delhi

but no credence has been given to these evidences produced by Smt. Usha Devi in her statement and the Revenue has not tried to investigate the

matter for verification of the above documents. In these circumstances, benefit of doubt goes in favour of the appellant as the appellant has given the

evidence that the impugned gold belongs to Smt. Usha Devi, which has been given to her by her father who has died on 04.11.2012 and the same was

kept in bank locker. To give the same to her mother on 06.07.2015, she put the gold in the dashboard of the car in question with knowledge of her

husband, the appellant. The said statement was also given by Smt. Usha Devi under Section 108 of the Customs Act, 1962 and the statements of the

persons relied upon by the Revenue have also stated that the impugned gold (which has been seized on 06.07.2015 from the appellant’s car) does

not belong to them.

In these circumstances, the appellant has able passed their onus of ownership acquisition of the gold in question. As the appellant has able to prove

the source of acquisition of the gold in question, the same cannot be confiscated. Furthermore, the car is also not liable to confiscation; therefore, I set

aside the impugned order qua absolute confiscation of the gold and the car in question and imposing penalty on the appellant.

In these terms, the appeal is allowed with consequential relief.

(Order pronounced in the court on 25.03.2021)