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TMI Blog1997 (8) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... also searched by the Officers on the strength of Search Order issued by the Assistant Commissioner of Customs concerned. When the search was going on, another person entered into the said shop premises, who was also apprehended by the Customs Officers after little chase and on the search of his person, six pieces of gold biscuits of foreign origin were recovered. The said person was found to be Shri Kajal Saha. The said recovered gold biscuits were seized by the Officers. However, they do not form the subject matter of appeals before me. 1.3 As per the facts on record, the shop premises of the appellant firm, M/s. S.C. Dey B.N. Sil Co. which was situated on the ground floor of the same premises at 3, Nalini Seth Road, Calcutta, were also searched by the Officers and the following items were seized :- Description of goods seized Weight Qty/Number, Value Lump of gold believed to be of foreign origin (i) 3 pcs. 95.400 gms. 43,300/- Rs. Recovered from the main iron safe of 3, Nalini Seth Road, Calcutta-7 Sovereign (Akbari Mohar/Guinea etc. assorted (ii) size) 128.500 gms. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. He also deposed that he did not know S/Shri Kajal Saha and Biswanath Ghosh. 1.6 As regards the three pieces of gold lumps found in the shop premises of M/s. S.C. Dey B.N. Sil Co., Shri Gurudas Seal while recording his statements before the Customs Officers, submitted that the same were made from the old ornaments and were meant for conversion into new ornaments. 1.7 As regards the 24 pieces of Sovereign, Shri Seal stated that the same belonged to the partners in their personal capacities and were very old. 1.8 As regards the Indian Currency of 4.5 lakhs, he submitted that out of the said total currency, Rs. 1.7 lakhs belonged to their Firm and Rs. 2.8 lakhs belonged to one Shri Swapan Kamilla of Barabazar Midnapore. However, he could not give the full and exact address of the said Shri Swapan Kamilla. 1.9 Based upon the above facts, M/s. S.C. Dey and B.N. Sil Co. along with its partners. S/Shri Monoj Kumar Sil, Shri Gurudas Seal and Uday Shankar Laha, Kajal Saha and Biswanath Ghosh - were issued the show cause notices proposing to confiscate the gold biscuits and gold bars recovered from the persons of Shri Biswanath Ghosh and Shri Kajal Saha and also proposing co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the fact that the same is referred to the eight pieces of yellow metallic biscuits. The Report pertaining to samples against (B) (C) which is in respect of gold lumps, is that the purity is 97.9% and 97.65%. From this, learned Advocate tried to conclude that the gold lumps in question have been made out of old gold ornaments and cannot be said to be contraband gold. He submitted that there is no other evidence on record to show that the gold was of foreign origin. He, further, submitted that under the Gold (Control) Act, the purity of standard gold has been fixed for 99%. From this he submitted that the presumption that the gold is of Indian origin is more in favour of the appellants. He also referred to the findings of the Commissioner (Appeals) in respect of the said three lumps of gold, wherein the appellate authority has admitted that there is no direct evidence about the foreign origin of the gold. However, he concluded that the foreign character of the gold from the purity of the same as is given in the Assay Report of the Chemical Laboratory, Commissioner of Customs, Custom House, Calcutta. He argued that the said view is based upon the presumption and assumption. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion can be derived from the above purities that the gold lumps in question have been made out of alloy produced from foreign gold biscuits. Accordingly, I hold that the gold lumps were not liable to confiscation. In coming to the above conclusion, I have taken into account the decision and order of the Honourable High Court of Calcutta in the case of Shamlal Sen Private Ltd. and Others v. Additional Collector of Customs and Others reported in AIR 1967 Cal. 239. In para 18 of the judgment, the Honourable High Court has observed - The real ground on which it was held that the gold was smuggled was that it was of a fineness which, according to the Customs Authorities show that the gold was of foreign origin. It appears that from time to time samples of gold were assayed and assay reports were supplied to the respondents. Before the adjudicating officer, no particular assay report was proved. Their Lordship in the said case has observed that even if the gold and the fineness found by the authorities is not manufactured in India, the same cannot be made the evidence in holding that the gold is of foreign origin. Referring to the Gujarat High Court s decision in the case of Bapalal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is nothing on record to show that the Gold Sovereigns were smuggled ones. Even the fineness of the same were made the basis for confiscation. However, there is no evidence brought on record by the Department to rebut the appellants stand that the Gold Mohars in question were the `legal tenders at the relevant times. 7. As such, in view of my discussions, I find that the conclusion arrived at by the authorities below is based on no evidence at all and the Sovereigns in question are not liable to confiscation. 8. As regards the confiscation of Indian Currency of Rs. 4.5 lakhs, the appellants learned Counsel has referred to a number of Tribunal s decisions as follows :- (i) 1992 (60) E.L.T. 277; (ii) 1994 (74) E.L.T. 56 (Tribunal); wherein it has been held as a proposition of law that the onus of proof that the Indian Currency is the sale proceeds of the smuggled gold, lies very heavily upon the Department and is required to be discharged by production of sufficient evidence by the Department. He submits that in the instant case, the Department has failed to produce any evidence on record to show that the said Currency seized from the appellants premises is the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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