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TMI Blog2006 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants i.e. M/s. Kapoor Jewellers Pvt. Ltd., and its Director Shri Ramesh K. Jain, under Section 112(b)(i) of the Customs Act, 1962 and 10 Foreign Mark Gold bars seized from the premises of the appellants were ordered to be confiscated absolutely. 3. The facts of the case in nutshell are that :- On 26-7-1993, on the basis of an information, the officers of enforcement searched the premises of M/s. Kapoor Jewellers Pvt. Ltd., and seized 10 foreign marked gold biscuits under the provisions of FERA 1973. Subsequently on 10-11-1993 in the presence of Shri Ramesh K. Jain, Director of M/s. Kapoor Jewellers Pvt. Ltd., the officers of M P Wing of Customs seized the said 10 foreign gold biscuits valued at Rs. 5,12,093/- (Rupees Five Lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the appellants have no case in appeal. The lower authority has discussed the case in detail and I fully agree with his findings. Since the gold can not be imported freely, any import without fulfilling the conditions of import is illegal and liable for confiscation. As per notification issued by the Govt. only passengers holding valid Indian Passport subject to some conditions are eligible to import gold. In the instant case, as the passport of the passenger was fake, the gold though duty paid at concessional rate, has been imported contrary to the prohibition and hence liable for confiscation under Section 111(d) of Customs Act, 1962. Any prudent man purchasing gold of such high value would have verified the authenticity of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g through the record, I am of the view that the investigation carried out in the case was not on correct lines and consequently it misled the authorities below in passing the impugned orders. The documentary evidence on record clearly establish the duty paid character of the seized goods as well as its legal importation through proper channels of customs. The inquiry conducted with the passport authorities was inappropriate and erroneous. The Show-Cause-Notice admits issuance of the passport Number P-447102 from Dubai passport office on which the passenger Shri Aravath Ali travelled. But surprisingly an inquiry was made with regard to said passport with the passport office at Cochin instead the consulate office at Dubai. Naturally the passp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baggage receipt validly show legal import of gold. The Department did not produce contra evidence or otherwise establish that the baggage receipt is not genuine. In such circumstance, confiscation of the gold is not warranted. 9. Under the liberalized Scheme vide Import Trade Control Order No. 8/90-93, dated 29-2-1992, gold in any form including ornaments but excluding ornaments studded with stones and pearls is allowed to be imported as part of baggage of passengers of Indian origin or a passenger holding a valid passport issued under the Passport Act, subject to certain conditions. It is therefore clearly evident that at the time of import of Gold a passenger should be of Indian origin holding a valid passport. In the instant case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was duly seized and cleared. Further, the appellants have also obtained affidavit of the importer at the time of purchase of gold from him. Earlier adjudication order in the case of very same appellants under similar circumstances was dropped by the Commissioner of Customs (Preventive), Mumbai. 11. Thus I am of the view that the Department have failed to substantiate the allegation that the passport held by NRI was invalid and that the gold was imported under invalid passport. Further it has failed to discharge the initial burden that the gold in question is smuggled one. 12. Therefore, the impugned order of the lower authorities confiscating 10 gold bars seized vide Panchnama dated 10-11-1993 and imposing the penalty on the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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