2023 (11) TMI 177 - AT - Customs

Maintainability of appeal - time limitation - Smuggling - yellow metal biscuit believed to be gold of foreign origin - Absolute Confiscation - levy of penalty - HELD THAT - In the impugned order, the Ld. Commissioner(Appeals) has not decided the merits of the case, but held that appeals were filed beyond time limit prescribed under Section 128 of the Customs Act, 1962, that appeal is to be filed within 60(sixty) days from the date of receipt of the order and appellants have filed appeal after 70(seventy) days, but as no reasons have been explained by the appellants, satisfactory to the Ld. Commissioner(Appeals), the Ld. Commissioner(Appeals) dismissed the appeals. In the impugned order, the Ld. Commissioner(Appeals) himself has recorded that the appellants have been communicated the adjudication orders only on 05.08.2018. The said fact has not been verified by the Ld. Commissioner(Appeals), while passing the impugned order, therefore, it cannot be said that the appeals were filed beyond the time limit prescribed under section 128 of the Customs Act, 1962 - matter remanded back to the Ld. Commissioner(Appeals) to decide the issue on merits on the basis of various judicial pronouncements. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Confiscation of the impugned goods.
2. Imposition of penalty on the appellants.
3. Time-barred appeal before the Commissioner (Appeals).

Summary:

Issue 1: Confiscation of the Impugned Goods
The appellants challenged the confiscation of 12 pieces of gold, weighing 1218.690 grams and valued at Rs. 38,13,783/-, recovered from M/s. Gouri Gold House. The Customs officers seized the gold under Section 110 of the Customs Act, 1962, on the belief that it was smuggled into India and thus liable for confiscation under Section 111(b) and 111(d) of the Act. The appellants argued that the seizure was conducted without "reasonable belief," violating the provisions of the Customs Act and related Circulars. They contended that the seizure list did not comply with the requirement of forming a reasonable belief and that the gold was purchased with valid documents.

Issue 2: Imposition of Penalty on the Appellants
Penalties were imposed under Section 112(b) and Section 114AA of the Customs Act, 1962. The appellants argued that the lower adjudicating authority failed to provide adequate opportunities for a personal hearing, thus violating the principles of natural justice. They also contended that the penalties were imposed without conclusive proof of illegal importation or smuggling. The appellants cited various judicial precedents to argue that mere possession of foreign-marked gold does not prove illegal importation.

Issue 3: Time-Barred Appeal Before the Commissioner (Appeals)
The Commissioner (Appeals) dismissed the appeal on the grounds that it was filed beyond the 60-day time limit prescribed under Section 128 of the Customs Act, 1962. The appellants argued that the adjudication order was communicated to them on 05.08.2018, making the appeal within the permissible time frame. The Tribunal found that the Commissioner (Appeals) failed to verify this fact and thus set aside the impugned order.

Decision:
The Tribunal remanded the matter back to the Commissioner (Appeals) to decide the issue on merits, specifically addressing whether a reasonable belief was formed at the time of the seizure. The Commissioner (Appeals) is directed to consider various judicial pronouncements and issue a decision within 30 days of receiving the order. The appeals were disposed of accordingly.