2024 (1) TMI 786 - AT - Customs

Smuggling - attempt to export the gold jewellary through illicit route of Bangladesh border - penalties - HELD THAT - The gold jewellary were recovered from the possession of Shri Chandi Biswas by the BSF officers in the Barantala Bazar and the same were handed over to the Customs officers for further necessary action under Customs Act - It is observe that the investigation has not brought in any evidence on record to substantiate the allegation that there was an attempted export of the said gold jewellary. The appellant has submitted documentary evidence in the form of three invoices claiming ownership of the gold jewellery seized. There is no investigation conducted by the department to ascertain the genuineness of the invoices. Shri Chandi Biswas in his statement dated 30.10.2018 stated that he was permanent staff of Shri Goutam Halder and the gold was handed over to him by the said Shri Goutam Halder for handing it over to M/s. Majumdar Jewellers. The investigation has not brought in any evidence to disprove this claim. Accordingly, the allegation of attempted export of the gold jewellery in the impugned order is not substantiated. In view of the above, the confiscation of the gold in the impugned order is not sustainable. Penalties - HELD THAT - Shri Chandi Biswas was holding the gold ornaments having purity of 91.6%. It was handed over to him by Shri Goutam Halder for giving it to Shri Biplab Majumdar. The impugned order has not brought on record the offence committed by each one of the appellants warranting penalties on them. As there is no evidence available on record for the attempted export as alleged in the impugned order, the penalties imposed against all the three appellants are not sustainable. Appeal allowed.

Summary

Issues:
The issues involved in the judgment are the attempted illegal export of gold ornaments, confiscation of goods under the Customs Act, imposition of penalties under section 114(i) of the Customs Act, and the authenticity of ownership claims regarding the seized gold.

Attempted Illegal Export of Gold Ornaments:
The case involved the interception of an individual with gold ornaments and a mobile phone by BSF officers, leading to the seizure of goods under the Customs Act. The appellant argued that there was no attempt to export the gold ornaments illegally, stating that the gold was handed over for legitimate purposes. The tribunal found that there was a lack of evidence to substantiate the allegation of attempted export, leading to the conclusion that the confiscation of the gold was not justified.

Confiscation of Goods under Customs Act:
The Customs authorities confiscated the gold jewelry seized from the appellant, citing a reasonable belief of attempted illegal export. However, the tribunal observed that the seized gold was of domestic origin and did not meet the criteria for foreign origin gold under the Customs Act. The tribunal also noted discrepancies in the documentation submitted by the alleged owner of the gold, leading to the finding that the confiscation of the gold was not sustainable.

Imposition of Penalties under Customs Act:
Penalties were imposed on the appellants under section 114(i) of the Customs Act. The tribunal examined the evidence and found that there was no proof of the alleged offense of attempted export, leading to the conclusion that the penalties imposed on all three appellants were not justified. Consequently, the tribunal set aside the penalties against the appellants.

Authenticity of Ownership Claims:
The authenticity of the ownership claims regarding the seized gold was a crucial aspect of the case. The tribunal considered the documentation provided by the alleged owner, which was dismissed by the adjudicating authority for lacking authenticity. Despite the submission of invoices claiming ownership, the tribunal found that there was a lack of investigation by the department to verify the genuineness of the documents. Ultimately, the tribunal held that the ownership claims were not substantiated, contributing to the decision to set aside the confiscation of the gold and the imposed penalties.

In conclusion, the tribunal allowed all three appeals filed by the appellants, providing consequential relief as per the law.