2021 (12) TMI 1024 - AT - Customs

Smuggling - gold bullion of foreign origin - notified goods or not - burden to prove - sufficient evidence present or not - contravention of provisions/conditions of notification no. 12/2012 dated 17.03.2012 read with section 3 of Foreign Trade (Development Regulation) Act, 1992 - HELD THAT - Though M/s DI Gold designer jewellery and M/s Ridhi Sidhi did not make them available before the investigating officer in furtherance of summon issued to them but from the time date chart as mentioned in the appeal, it is abundantly clear that the notices were served for just five to seven days time for both these appellants to appear and in fact, most of them were received by these appellant after the date of hearing mentioned therein use to expire. In such circumstances, the findings of the adjudicating authority below that both these appellants failed to co-operate the investigating agency are held to be false on the face of it - out of the gold weighing 1255.3 gms as purchased from said Shreenath Corporation, the gold weighing 351.54 gms was mentioned to have been sent to M/s Ratuaria Jewellers for making jewellery. Accordingly, the work order dated 15/10/2014 stands corroborated in view of this letter of M/s. DI Gold Designee Jewellery. It was also corroborated that Ratusaria since could not get the jewellery made, hence, returned the said gold quantity of 351.54 gms. vide delivery note of 30/10/2014. It has been found clarified that it was not necessary to return the gold of same marking. Section 123 of Customs Act cannot be resorted to otherwise also as already discussed above, there is ample evidence for discharging the said burden by the appellants in terms of said Section 123. The present, therefore becomes a clear case where department has failed to established that the seized foreign marked gold was smuggled one. Merely because the foreign marked gold is involved, the same is wrongly held to be smuggled one - In the present case, when apparently, the show cause notice proposing confiscation of goods seized under Section 110 of Customs Act was issued after one year from the date of seizure. The show cause notice itself gets hit by limitation as the show cause notice was mandatorily to be issued within the six months time of the seizure. The show cause notice has been objected since beginning to have been hit by time still the adjudicating authority failed to take cognisance thereof. Accordingly, the show cause notice itself is held to be barred by time and as such being void ab initio. As far as DI Gold Designee Jewellery M/s. Ridhi Sidhi are concerned, the order against them has been passed to holding them to fail to appear and respond but from the date chart as relied upon by the appellants with respect to the date of issue of summons the date of receipt thereof and the date of hearing mentioned in summons it is abundantly clear that the absence of these appellant was not at all intentional but because of too short time as was given to them to make themselves available before the investigating officer. Absence of reasonable time for seeking presence amounts to absence of reasonable opportunity and is definite violation of Principles of Natural Justice. Show cause notice under Section 124 of Customs act confirming confiscation of seized gold being issued beyond six months of the date of seizure is held to be barred by limitation - Lack of appropriate and reasonable opportunity of hearing to the appellant amounts to violation of natural justice, the findings against them are liable to be set aside on this score as well. The appellants have sufficiently discharged their burden of proof in terms of Section 123 of Custom Act by proving the licit possession of the impugned gold which was delivered for job work through approved mode of the Trade for transfer of Gold and Jewellery - the department has failed to show any cogent reason to believe that the goods were the smuggled one. The Order-in-Appeal is nothing but the outcome of presumption on part of the authority - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Timeliness of the Show Cause Notice under Section 124 of Customs Act.
2. Proper service and sufficiency of notice period for appearance before the investigating authority.
3. Legitimacy of the possession of the seized gold under Section 123 of Customs Act.
4. Alleged violation of principles of natural justice.
5. Basis for the presumption of smuggling by the adjudicating authority.

Issue-wise Detailed Analysis:

1. Timeliness of the Show Cause Notice:
The appellants argued that the Show Cause Notice under Section 124 of the Customs Act, 1962, was issued after the mandatory period of six months from the date of seizure, which expired on 27/05/2015, whereas the notice was issued on 05/11/2015. The Tribunal upheld this argument, stating that the show cause notice was barred by time and thus void ab initio, referencing the decision in Rakesh Kumar Bhagat vs. Commissioner of Customs, New Delhi.

2. Proper Service and Sufficiency of Notice Period:
The appellants M/s DI Gold & M/s Ridhi Sidhi Jewellers claimed that the show cause notice was not properly served and insufficient time was given for their appearance. The Tribunal found that the notices were served with just five to seven days for appearance, and often received after the hearing date had expired. This was held as a violation of the principles of natural justice, as it did not provide a reasonable opportunity for the appellants to present their case.

3. Legitimacy of the Possession of the Seized Gold:
The appellants provided documents such as tax invoices, work orders, and delivery challans to prove that the gold was legally acquired and sent for job work through the trade practice of 'Angarias.' The Tribunal observed that the appellants had sufficiently discharged their burden of proof under Section 123 of the Customs Act by providing these documents. The department failed to investigate or provide evidence that the gold was smuggled.

4. Alleged Violation of Principles of Natural Justice:
The Tribunal noted that the absence of the appellants was not intentional but due to the short notice period. This lack of reasonable time for appearance was deemed a violation of the principles of natural justice. The Tribunal drew support from the decision of the Hon'ble High Court of Delhi in the case of Directorate General of Central Excise Intelligence vs State, emphasizing the necessity of reasonable opportunity for hearing.

5. Basis for the Presumption of Smuggling:
The Tribunal found that the adjudicating authority's conclusion that the gold was smuggled was based on mere presumption due to the foreign markings on the gold. The Tribunal emphasized that the mere fact of foreign origin was insufficient to prove smuggling. The department's failure to investigate the origin and duty payment of the gold was highlighted. The Tribunal referenced multiple decisions, including Krishna Kumar Dhandia vs. Commission of Customs and Union of India vs. Imtiyaz Iqwal Pothiawala, to support its stance that the burden of proof had shifted to the department, which it failed to fulfill.

Conclusion:
The Tribunal concluded that:
i) The show cause notice was barred by limitation.
ii) The appellants were denied proper and reasonable opportunity, violating principles of natural justice.
iii) The appellants had sufficiently proven the licit possession of the gold.
iv) The department failed to provide evidence of smuggling.
Thus, the Order-in-Appeal was set aside, and the appeals were allowed.