9911796707
TMI Blog2004 (12) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1992. He has also released the gold idols totally weighing 1058.896 gms. to M/s. Vignesh Kumar Jewellers and has imposed penalty under Section 112 of the Customs Act, 1962 on the appellants as detailed below : i) Chengalvarayan - Rs. 5.00 lakhs (ii) N.S. Suresh - Rs. 2.00 lakhs (iii) M. Dhanasekar - Rs. 50,000/- (iv) Jitendra Jain - Rs. 50,000/- (v) Amanulla - Rs. 25,000/- (vi) Lalith Kumar - Rs. 5,000/- (vii) Indra Narayanan - Rs. 5,000/- 2. Brief facts of the case are that on the basis of specific intelligence that huge quantity of gold coin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve jewellery was received on payment of duty, certain portion was smuggled goods. The officers searched the business premises of VKJ on 2-11-2000 in the presence of one Balaji brother of Shri Chengalvarayan and during the search the officers found gold jewellery, gold idols of foreign origin and some documents/registers pertaining to purchase and sale of gold. Shri Balaji could not correlate the gold jewellery and idols found in the shop with the documents and registers. Balaji also stated that he was not aware of any dealings relating to the gold jewellery in VKJ. The gold jewellery and gold idols were got assayed by a market assayer who certified that the items were of 22 carat and were of foreign origin. The officers seized 9819.830 gms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority has overlooked these vital facts. As regards the chits that were seized from the house of one Damodaran alias Dhamu, he has submitted that mere recovery of some photocopies of chits from the house of one Damu cannot be connected with the transactions done by VKJ. Further the said Damu was also not contacted by the Department nor any statement recorded from him. No evidence has been shown that Damu was an employee of VKJ. Further, the so called chits did not contain any name of the shop nor the wordings written therein showed that they relate to any dealing relating to the goods under seizure. He, therefore, submitted that the such chits cannot be taken as evidence. The Counsel also referred to the documents such as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 20-11-2000 whereby seizure of gold jewellery from the shop which is also exporting gold jewellery should not be effected. He has also submitted that with the repeal of the Gold (Control) Act, the appellants are not required to show any accounts to the officers, regarding their transaction in gold. He, therefore, submitted that the seizure and confiscation and imposition of penalty is without the authority of law and he prayed for setting aside the order and allowing the appeals. 4. Heard ld. DR Shri C. Mani who defended the impugned order. 5. We have carefully considered the rival submissions and gone through the case records. In the present appeals, we are concerned with the legality or otherwise of the absolute confiscation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 shall not have any application in the present case. Merely holding that - Also the seized goods being covered under Section 123 of the Customs Act, casting the onus of proving the licit nature of the same lying on the noticee and the noticee having not discharged this onus with plausible evidence, the same are liable for confiscation under the Customs Act, 1962. This observation made by the adjudicating authority, in our opinion, is totally unwarranted, to say the least. In the present case, the adjudicating authority in para 37.1 of the impugned order has clearly found that M/s. VKJ gave an account of purchase of 24 carat gold from SBI, MMTC and the conversion and other details of the same. He has also held that they have accounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation of the adjudicating authority that he was more concerned about the availability of gold jewellery in the shop which were meant for export, rather than going into the evidence to support his finding that the smuggled gold was used for making ornaments. Merely because, certain quantity of jewellery manufactured out of imported gold purchased by them and which were meant for export has been kept in the jewellery shop, that by itself cannot be a ground to hold that the jewellery found in the shop was made out of smuggled gold. Such finding should be supported by concrete evidence which is totally absent in the present case. Even if some of the gold jewellery meant for export has been displayed in the jewellery, that cannot be reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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