2018 (5) TMI 1681 - AT - Customs

Confiscation of gold jewellery - gold jewellery was recovered in the DRI Office - smuggling activities - as per revenue passenger has failed to explain the possession of the smuggled goods and as such are liable for confiscation - Held that - Gold is an item which is notified under Section 123 of the Customs Act, 1962 - It is seen that there is no foreign marking on the jewellery. Revenue has not placed any proof to substantiate that the jewellery was smuggled into India other than the statement of the passenger - appeal dismissed - decided against Revenue.

Issues:
Delay condonation application by Revenue for filing appeal, Confiscation of gold jewellery seized by DRI, Failure to explain possession of smuggled goods, Applicability of Section 123 of the Customs Act, 1962, Lack of evidence to prove smuggling, Justification of Commissioner (Appeals) decision.

Delay Condonation Application:
The Revenue filed an appeal against Order-in-Appeal No. 239/2015 after a delay of 1043 days, citing confusion regarding the jurisdictional authority due to the nature of the case initially being perceived as related to baggage. The Revisionary Authority clarified that the issue did not pertain to baggage, prompting the Revenue to file the appeal with a delay condonation application. The Tribunal condoned the delay, attributing it to pursuing the appeal before the wrong authority, and admitted the appeal for consideration.

Confiscation of Gold Jewellery:
The appeal pertained to the confiscation of gold jewellery seized from a passenger by the DRI at Nizamuddin Railway Station. The Revenue argued that the circumstances indicated smuggling as the passenger admitted to purchasing the jewellery from Dubai and bringing it into India, with no foreign markings on the jewellery. The Revenue contended that the goods were liable for confiscation under Section 123 of the Customs Act, 1962. In contrast, the respondent argued that there was insufficient evidence to prove smuggling, highlighting the lack of corroboration for the passenger's statement and presenting alternative explanations for the possession of the jewellery.

Failure to Explain Possession of Smuggled Goods:
The case revolved around the passenger's possession of gold jewellery allegedly smuggled from Dubai. The Revenue asserted that the passenger failed to explain the possession of the goods satisfactorily, invoking Section 123 of the Customs Act, 1962. However, the respondent contested this claim, emphasizing the absence of concrete evidence supporting the allegation of smuggling and presenting counter-arguments to refute the Revenue's assertions.

Applicability of Section 123 of the Customs Act, 1962:
The Tribunal considered the provisions of Section 123 of the Customs Act, 1962, which address the confiscation of notified items like gold. The Commissioner (Appeals) had ruled that the seized goods were not liable for confiscation based on the lack of substantial evidence beyond the passenger's statement to prove smuggling. The Tribunal upheld this decision, noting the absence of foreign markings on the jewellery and the Revenue's failure to provide additional proof of smuggling.

Lack of Evidence to Prove Smuggling:
The Tribunal analyzed the evidence presented, including the circumstances of the passenger's travel and the lack of foreign markings on the jewellery. It was observed that the Revenue relied primarily on the passenger's statement to allege smuggling without corroborating evidence. The Tribunal found no compelling reason to overturn the Commissioner (Appeals) decision, emphasizing the insufficiency of proof to establish smuggling beyond the passenger's assertions.

Justification of Commissioner (Appeals) Decision:
Ultimately, the Tribunal upheld the Commissioner (Appeals) decision to not confiscate the gold jewellery, citing the lack of foreign markings, absence of substantial evidence supporting smuggling allegations, and the passenger's alternative explanations for possessing the jewellery. The Tribunal rejected the Revenue's appeal, affirming the findings of the impugned order as justified and sustained based on the available facts and legal considerations.

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