2016 (9) TMI 221 - HC - Customs

Challenge to conviction and sentence order passed by the courts below under Section 135(1)(i) of the Customs Act, 1962 - import of 560.32 gram of gold from abroad without remitting the duty and filing false declaration - petitioner submitted that the market value fixed by the Department was not in accordance with the then existing market value - Held that - it is revealed from the records that the gold found in possession of the revision petitioner was having a purity ranging from 99.78% to 78.90%. The market value of the gold would, no doubt, vary with the purity of the gold. What was the yardstick taken by PW1 to ascertain the market value of the gold involved in this case is not revealed from the evidence on record. Apart from the oral evidence of PW1, there is absolutely no material before the court to prove the market value of the gold involved in this case. Therefore, I am of the view that it is only just and proper to grant an opportunity to both sides to adduce evidence regarding the market value of the gold involved in this case during the relevant period. For the said reason, I am inclined to set aside the conviction and sentence passed by the appellate court under Sec. 135(1)(i) of the Customs Act and remit the matter to the appellate court. - Appeal allowed by way of remand

Summary

Issues: Challenge of conviction and sentence under Section 135 (1) (i) of the Customs Act, 1962 based on market value of gold found in possession.

In this case, the accused challenged the concurrent finding of conviction and sentence under Section 135 (1) (i) of the Customs Act, 1962, for being found in possession of gold without remitting duty and filing false declaration. The prosecution alleged that the accused imported 560.32 grams of gold with a market value of ` 2,32,003/- from abroad. The accused did not present any evidence in defense during the trial. The defense argued that the market value fixed by the Department did not align with the actual market value at the time, seeking to bring the case under Section 135 (1) (ii) of the Customs Act. The defense contended that evidence from the Internet indicated a lower market value for gold during the relevant period. The court noted the varying purity of the gold found in possession and the lack of concrete evidence regarding the market value determination methodology used by the prosecution witness. Consequently, the court set aside the appellate court's judgment and remitted the matter for fresh consideration, allowing both sides to present evidence on the market value of the gold.

Therefore, the Revision Petition was allowed, overturning the conviction and sentence under Section 135 (1) (i) of the Customs Act. The case was remitted to the Appellate Court for a fresh decision, with directions to provide a fair opportunity for both parties to present evidence regarding the market value of the gold involved. The revision petitioner was ordered to appear before the Court on a specified date for further proceedings.