Confiscation Of Foreign Gold Bars Upheld: CESTAT Kolkata On Fabricated Defence And Penalty Relief
Background Of The Case
The matter before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata, in Vishal Kumar Trivedi Vs Commissioner of Customs (Prev.), arose from a common adjudication order No. 37/CUS/CC(P)/WB/2016 dated 31.01.2017 passed by the Commissioner of Customs (Prev.), West Bengal, Kolkata.
The adjudicating authority had:
- Ordered absolute confiscation of 90 pieces of foreign-origin gold biscuits,
- Having an aggregate weight of 10,494 grams,
- With a total assessed value of Rs. 2,77,72,371/-, and
- Imposed monetary penalties on the two appellants under
Section 112(b)of the Customs Act, 1962.
The confiscation was ordered under Section 111(b) and Section 111(d) of the Customs Act, 1962, on the ground that the appellants were in possession of the foreign-marked gold and failed to produce any evidence of lawful import.
Penalties were imposed as follows:
- Rs. 30 lakh on Shri Vishal Kumar Trivedi, and
- Rs. 20 lakh on Shri Kundan Kumar Vyas,
both under Section 112(b) of the Customs Act, 1962.
The present appeals challenged only the penalty component, not the confiscation itself.
Facts As Presented By The Appellants
Nature Of Their Work And Role In Transport
Counsel appearing for the appellants argued that both individuals were essentially small-time workers who used to carry jewellery packets between shops in the jewellery market at Nellore for minor trip-wise payments.
According to this version:
- While engaged in such activity at Nellore, they allegedly came into contact with a person referred to as “Shri Rajesh Bhai”.
- This person purportedly offered them better remuneration and invited them to come to Kolkata.
- The offer was accepted by Shri Kundan Kumar Vyas, who in turn asked his friend Shri Vishal Kumar Trivedi to accompany him.
On this basis, the defence projected them as mere carriers acting for remuneration, with no knowledge of the true nature of the consignment.
Seizure Of Gold In Kolkata
On 01.10.2015, officers of the R & I Branch of the Commissioner of Customs (Preventive), West Bengal intercepted the appellants in Kolkata. Upon search, the following was recovered:
- From Shri Vishal Kumar Trivedi: 50 pieces of foreign-marked gold biscuits
- From Shri Kundan Kumar Vyas: 40 pieces of foreign-marked gold biscuits
The total quantity came to 90 gold biscuits of foreign origin.
The appellants submitted that from the very outset, in their first statements recorded by Customs on 01.10.2015, they:
- Maintained that they were unaware of the contents of the packets they were carrying,
- Claimed they had received these packets under the directions of “Shri Rajesh Bhai”, and
- Stated that they came to know that the packets contained foreign-marked gold only after the Customs officers opened the packets post-interception.
On this foundation, they argued a complete lack of prior knowledge that the goods were liable to confiscation.
Investigation Into The Identity Of “Shri Rajesh Bhai”
Mobile Number Lead And KYC Findings
During investigation, officers pursued the trail based on a mobile number – 8807272019 – which the appellants identified as belonging to “Shri Rajesh Bhai”.
The inquiry revealed:
- The mobile number 8807272019 was registered in the name of one Shri Palani of Coimbatore.
- The Aadhar Card and KYC documents, however, were in the name of one Shri Ashok Ghosh of Shanmugam Road, Coimbatore, whose credentials were cancelled in 2012.
No further credible link emerged between this number and any real person matching the description of “Shri Rajesh Bhai”.