2007 (11) TMI 172 - AT - Customs

Customs Authorities have illegally made an allegation that gold in question was concealed in the rectum by 2 persons without evidence in support for such allegation - no basis for proceeding against the Appellant - allegation of gold being imported was without any credible evidence in absence of foreign marking thereon - Appellant should get benefit of doubt that the gold is of Indian origin - it would be proper for Appellate Authority to hear grievance of the Appellant afresh matter remanded

Summary

Issues:
Challenge to impugned order alleging lack of evidence, illegal allegation of concealment, failure to inquire from ornament maker, ignorance of evidence, baseless allegation of gold import, injustice by lower authorities, plea for justice, reduction of penalty, recovery of gold from rectum without following prescribed procedure, failure to give statement, absence of foreign marking on gold, consideration of evidence by lower authority, avoidance of summons by appellant.

Analysis:

1. The Appellant challenged the impugned order, claiming it was bad in law due to the Customs Authorities making an illegal allegation that gold was concealed without evidence. He argued there was no basis for proceeding against him, no inquiry from the ornament maker, and no credible evidence of gold import. The Appellant maintained he was the real owner of the gold and that the case against him was fabricated, with no proof of recovery following due process of law. He also alleged gross injustice by the lower authorities in disregarding relevant judgments and evidence supporting his innocence.

2. The Revenue, represented by the Ld. SDR, contended that the Appellant was rightly dealt with after remand by the Tribunal, and the penalty was reduced in the impugned order. The Ld. Commissioner upheld the order of adjudication but reduced the penalty imposed on the Appellant.

3. Upon hearing both sides and examining the case record, it was found that the recovery of gold from the rectum of two persons did not comply with the prescribed procedure under Section 103 of the Customs Act, 1962. The Appellant failed to give a statement before the Customs authorities, and there was no mention of any foreign marking on the gold. The first Appellate Order was deemed flawed as it did not consider all evidence, and the Appellant avoided summons for investigation. Therefore, the matter was remitted back to the lower Appellate Authority for a fresh decision in accordance with the law, setting aside the impugned order.

This comprehensive analysis addresses the various legal issues raised in the judgment, including lack of evidence, procedural irregularities, consideration of evidence, and the need for a fair hearing for the Appellant.