9911796707
TMI Blog2020 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ency under section 111(b) & (d) of the Customs Act, 1962 and imposition of penalty of Rs. 1,25,000/- since the appellant claimed that the said gold was not seized from his possession, the appellant is neither owner of the gold nor the claimant of the gold. 3. The facts of the case in brief are that the appellant is engaged in trading of electric appliances through his shop situated at Hakimpur Bazar. On 03/04/2016, the appellant was going to MEGHA TRANSPORT at Hakimpur for giving them Rs. 6,000/- toward freight charges for transporting his electrical goods from Ezra Street, Kolkata to his Shop Premises at Hakimpur. On his way, ½ K.M. away from his house, at about 6.50 P.M., he was intercepted by BSF Officials. At the time of interception, no gold was recovered from the appellant. The appellant was only having a Mobile Phone and Rs. 6,000/- Indian currency. The BSF Personnel told the appellant to go to the BSF Camp with them. The appellant enquired about the reasons and the BSF Personnel told him that the appellant is required to be a witness in a case and his signature is required. The appellant did not agree to go with them but he was forced and compelled to go to the BSF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the BSF Seizure Memo. The appellant categorically stated before the Customs Officials in his statement under Section 108 of the Customs Act, 1962 that he is not the owner of the gold and the same was not seized from his possession. He is not claiming the gold nor he is the carrier of the gold. Illegal importation through unauthorised route does not arise. The proceeding has no legs to stand. No investigation was made in respect of the persons whose names were allegedly taken by the appellant as reflected in the BSF Seizure Memo. The appellant stated that he does not know any person whose names have been mentioned in the BSF Seizure Memo since he did not illegally import any gold, the question of discharging burden under Section 123 of the Customs Act, 1962 does not arise. He prayed for refund of the mobile phone and Indian currency of Rs. 6,000/-. In the mean time, a Notice under Section 150 of the Customs Act, 1962 was issued to the appellant seeking his opinion if the seized gold is disposed of. The appellant vide his letter dated 08-11-2016, intimated the Additional Commissioner that he is not the owner of the seized gold. The raising of objection regarding pre-trail dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act,1962 and he was not required to discharge burden under Section 123 of the Customs Act, 1962. 5. During the course of hearing of the appeal, the question was raised as to whether notice of hearing was actually given to the appellant since the learned Commissioner (Appeals), proceeded in the absence of the appellant recording that the matter was fixed for hearing on 21-11-2017, 05-12-2017 and on 12-12-2017 but the appellant failed to attend. But the appellant's case is that he did not receive any notice of hearing. The learned Authorized Representative on behalf of the Revenue produced copies of the notices and contended that the notices were sent but did not come back, which is enough proof of giving notice. The learned Advocate for the appellant submitted that the legal position is very clear in respect of service of notice or order or summons. The proof of service is required, which cannot be assumed/presumed. The learned Advocate for the appellant further proceeded to make submissions with regard to merit of the case. 6. The learned Advocate appearing on behalf of the appellant submitted that this is a case where the appellant has been illegally implicated. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by him, he was only made to sign on a document at night of 03-04-2016 by the BSF Personnel. He was not aware of the contents of the said Seizure Memo of BSF. Undisputedly, everything has been repeatedly denied before the Customs Authority. The learned Commissioner has also recorded that the appellant has placed many case laws and prayed for setting aside the order of the Adjudicating Authority but the learned Commissioner (Appeals) did not deal with any of the decisions. 7. The learned Authorized Representative for the Revenue submitted that the contents of the Seizure Memo of BSF Authorities cannot be doubted. The appellant did not make any complaint before the higher authorities of BSF. The denial of recovery of gold from the appellant's possession and denial of the contents of the Seizure Memo during investigation by the Customs Authorities by giving statements under Section 108 of the Customs Act, 1962 is merely an afterthought. The learned Commissioner (Appeals) has rightly upheld the Order of the Adjudication Authority. 8. Heard both sides and perused the appeal records. 9. I find that the authorities below proceeded on the basis of assumption of recovery of gold fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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