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TMI Blog2018 (3) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... te duty and is not prohibited. Appeal allowed in part. - Appeal Nos. C/70111-70112 & 70114/2017-CU[SM] - Final Order Nos. 70386-70388/2018 - Dated:- 21-2-2018 - Mr. Anil Choudhary, Member (Judicial) Shri Dushyant Kumar (Consultant) for Appellant Shri Mohd Altaf (Asstt. Commr.) AR for Respondent ORDER Per: Anil Choudhary These appeals have been preferred against impugned Orders-in-Appeal confirming the absolute confiscation of eight pieces of Foreign Origin Gold Bar bearing Suisse mark with 999.9 purity without any serial numbers, collectively weighing 933.120 gms and also penalty under Section 112(b)(i) of the Customs Act, 1962. 2. Brief facts of the case are that the Police of Muzaffarnagar on 02.01.2015 arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder reference, which are clear testimony of legal import of goods biscuits seized from Mohd Waseem in present case. 8. Statement of Mohd Waseem was recorded on 5th January, 2015 under Section 107 of the Customs Act at the District Jail, Muzaffarnagar with the permission of Hon ble CJM Court, Muzaffarnagar, wherein he stated that he is engaged in the work of whitewashing at Saudi Arabia and admitted to have contributed for the first time alongwith Aftaab, Faizal and Saartak ₹ 5.75 lakh each, for smuggling of Gold Biscuits by way of their share from Saudi Arabia i.e., UAE through the aid of settings of Alam at Delhi International Airport. Regarding the knowhow of settings of Alam at Delhi International Airport he showed his innocenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and 05.05.2015 were sent to each Mohd. Wahab and Mohd. Usman but none of them turned up. Summons dated 10.03.2015, 01.04.2015 and 21.04.2015 were also sent to Mohd. Faisal and his attorney holder Shri Abdul Samad for appearance on 24.03.2015, 16.04.2015 and 06.05.2015 but Summons in respect of Mohd. Faisal dated 01.04.2015 and 21.04.2015 Pata karne par prapt karta ka pata nahi lagta, wapas dated 19.04.2015 and Sahi prapt karta ka pata nahi lagta wapas date 28.04.2015 . Likewise, only one Summon in respect of Shri Abdul Samad was received back in the office with the remarks of the postal authority on the envelop Sahi prapt karta ka pata nahi lagta wapas . 11. Accordingly, it appeared to Revenue that the defence put up by Mohd Naseem bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs initiated in absence of non-joinder of essential parties namely Shir Abdul Samad and Mohd Usman and Mohd Faisal are vitiated and bad. It was further contended that so far the proposed penalty under Section 112(b)(i) is concerned, there is no evidence on record in support of dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111. Hence penalty is not imposable. The Additional Commissioner adjudicating the show cause notice, confiscated the eight gold bars absolutely and further imposed penalty under Section 112 (b)(i) of the Customs Act, 1962 as follows:- - Mohd Waseem ₹ 2 lakhs, - Shri Javed ₹ 2 lakhs, - Mohd Alam ₹ 3 lakhs. 12. Being aggrieved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need not to be proved , the observation of Hon ble Apex Court in the case of Commissioner of Central Ecise Madras vs. Systerm and Components (P) Ltd. [2004(165) ELT 136(SC)]. He has totally ignored the documentary evidence affidavits and duty paying documents which were submitted to the department during investigation after seizure. 16. The seized gold has been seized by the police (who are not Customs Officers) and thus Section 123 of the Customs Act is not invokable and burden lies on the department to prove that gold bars in question were smuggled one, especially when the documentary evidence for legal import of the same were submitted before the department. 17. Importation of gold is not prohibited and thus Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of appropriate duty and is not prohibited. Accordingly, in the interest of justice I modify the impugned order as follows:- The order of absolute confiscation is set aside and modified to confiscation with option to redeem the gold in favour of Mohd Waseem from whose possession the gold was recovered on payment of duty and redemption fine ₹ 5 lakhs. Further under the facts and circumstances, the penalty imposed under Section 112(b)(i) of the Customs Act, 1962 is set aside with respect to all the appellants. 21. Thus, the appeal of Mohd Waseem is allowed in part and appeal of others are allowed. On payment of duty and fine, the gold be released forthwith. ( Pronounced in Court on 21.02.2018 ) - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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