ORDER
S. Kalyanam, Vice President
1. This appeal is directed against the order of the Central Board of Excise & Customs dated 4-1-1982. Since the case had a chequered history, it is but proper that the relevant facts have to be chronologically mentioned to appreciate the factual position and also the pleas advanced by the appellant.
2. The customs authorities seized a post parcel from the appellant’s office at Tiruchi on the night of 17/18-9-1979 on prior information that the parcel contained contraband goods. After effecting seizure of the parcel, the authorities found the same to contain 158 semi-precious stones totally weighing 720 cts. and on a reasonable belief that the goods were of foreign origin the authorities effected seizure under a mahazar. The goods are valued at Rs. 16,325. The parcel also contained other items with which I am not concerned in the present appeal. Proceedings after due investigation were instituted against the appellant in connection with the seizure of the aforesaid semi-precious stones of foreign origin which eventually culminated in an order of adjudication at the hands of the Asstt. Collector of Central Excise & Customs, Madurai, dated 4-5-1981 under which the goods were absolutely confiscated u/s 111(d) of the Customs Act, 1962, the ‘Act’ for short, read with Section 3(2) of the Imports and Exports (Control) Act, 1947 besides a penalty of Rs. 1,000 on the appellant u/s 112 of the Act. The appellant preferred an appeal as per law before the CBEC which by order dated 4-1-1982 remanded the matter to the original authority by setting aside the order of the adjudicating authority on the ground that the same was violative of the principles of natural justice. As against this order of remand passed by the Central Board, the appellant preferred a revision to the Govt. of India which was also confirmed by order dated 28-10-1985, the impugned order before it. The appellant thereafter filed a writ petition before the High Court of Madras in WP No. 1398/86 challenging the jurisdiction, authority and power of the Govt. of India to decide the revision application particularly after the constitution of CEGAT in the year 1982 and the High Court by order dated 24-12-1992 allowed the writ petition and directed the Govt. of India to forward the concerned papers to the Appellate Tribunal and further directed that the concerned Tribunal “will take on its file the file relating to order No. 29-A/85 and dispose of the same in accordance with law after giving reasonable opportunity to the petitioner within four months from this date.” The records would appear to have been misplaced at the Govt. of India and therefore were not received by the Tribunal and in the meanwhile, the appellant also filed a contempt application in the Madras High Court in WMP No. 28172 of 1994 and the High Court by its order dated 12-12-1994 directed the Govt. of India to transmit the papers to the concerned Tribunal within three weeks from the date of receipt of this order. Thereafter, records were received in the Tribunal and the appeal listed.
3. Sh. Jamal, the learned Counsel submitted that admittedly the goods under seizure were not notified either at the relevant time or at a later point of time and, therefore, Section 123 is not applicable. The Board having given a finding in favour of the appellant that onus is on the department to prove that the goods were of foreign origin should have instead remanding the matter allowed the appeal.
4. It was further urged that the inculpatory statement recorded from the appellant by the authorities on 17-9-1979 was not voluntary and true and would not merit acceptance by reason of the fact that the same was retracted at the time of reply to the show cause notice. The learned Counsel further urged that in any event the absolute confiscation of the goods particularly taking into consideration the quantity, value and the nature of the items is not called for and pleaded that in any case the appellant should have been given in the interests of justice an opportunity to redeem the goods on payment of a suitable fine.
5. Heard Shri Arulsamy, the learned DR.
6. I have carefully considered the submissions made before me. The fact of seizure of the goods was admitted and the appellant is not disputing his ownership and possession of the same. The fundamental issue is as to whether the goods were of foreign origin so as to clothe the authorities with a jurisdiction to seize the same. It is also not disputed that Section 123 of the Act does not apply to the goods in question and this is also borne out by the categorical finding in favour of the appellant in this regard in the order of the Board. However, the appellant has given an inculpatory statement admitting that the goods were of foreign origin. This inculpatory statement was made on 17-9-1979 and was not retracted till after the appellant gave a reply to the show cause notice dated 4-5-1980. There is no acceptable satisfactory explanation as to why the appellant did not retract the statement earlier if really the statement had been brought out under circumstances of threat and coercion. This conduct of the appellant is indeed relevant in the factual background of this case. It is also well settled that when a plea is urged that the statement was not voluntary and was under threat and coercion, it is for the appellant to prove or probabilise the same and in the present case, notwithstanding the fact that the appellant was given an opportunity to cross-examine the officer who recorded the statement, nothing has been elicited to probabilise the plea of alleged coercion or threat. In these circumstances, I hold that the statement recorded from the appellant admitting the fact that goods seized from his possession and belong to him were of foreign origin is acceptable and is proved voluntary. Once the goods are proved to be of foreign origin, it is for the appellant to prove the licit acquisition since import of the goods under the relevant policy as it stood was not permissible. Sh. Arulsamy, the learned DR, at this stage, intervened to submit that the Import Policy at the relevant time was very strict in permitting the import of semi-precious stones. Therefore, I hold that the goods having been proved to be of foreign origin and in the absence of any evidence on the side of appellant to probabilise the licit acquisition or possession, the goods would become liable for confiscation u/s 111(d) of the Act. In this view, I uphold the confiscability of the goods in question.
7. At this stage, Sh. Jamal, the learned Counsel, made a fervent plea for modification of order of absolute confiscation and permitting the appellant to exercise the option of redemption and urged that the seizure took place way back in 1979 and even today the appellant would be entitled to have the goods redeemed on grounds of violation of principles of natural justice. The learned Counsel further submitted that the value of the goods is insignificant and not much and the appellant has undergone the ordeal of fighting out the case right from 1979 till date having moved the High Court also by way of writ. It was further submitted that as the law stands today even precious metals like gold biscuits and foreign silver bars are permissible for import subject to certain conditions.
8. Taking into consideration the fact that the issue was started way back in 1979 and also taking into account the value and the nature of the goods and the chequered history the case has had and the ordeal the appellant has undergone in fighting out the case before many for a and also keeping in mind the fact that as the law stands today even precious metals like gold biscuits and foreign silver bars are permissible for import of course subject to certain conditions, I am of the view that absolute confiscation of the goods may not be called for. In this view of the matter, I modify and set aside the order of remand passed by the Board referred to supra and while upholding the confiscability of the goods in question in terms of the original order. I modify the order of absolute confiscation and permit the appellant to redeem the goods on payment of a fine of Rs. 3,000/- (Rupees three thousand only) and in fixing the quantum of fine I took into consideration the value of the goods as set out in the mahazar by the deptt. at the time of seizure which is to be taken into account under law. However, taking into consideration the pleas made and the facts and circumstances, I reduce the penalty from Rs. 1,000/- to Rs. 500/- (Rupees five hundred only). But for the above modifications, the appeal is otherwise dismissed.