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TMI Blog2021 (5) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... s, then the burden of proof that the goods are not imported lies on the appellant. But firstly, there should be a reasonable belief that the gold in question is smuggled one is to be established by the revenue to invoke Sec. 123 of the Customs Act.In the impugned order as well as adjudication order, nowhere it has been established that there was a reasonable belief that the goods in question are smuggled goods which is the bone contention to invoke Section 123 of the Customs Act, 1962. Revenue has failed to discharge that they are initial burden that on reasonable belief that the goods in question are smuggled goods. Further, it has been found that only market enquiry was done for valuation and purity of the goods in question. No fact ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d item under section 123 of Customs Act 1962. The gold was seized absolutely and penalty of ₹ 10,000/- was imposed under section 112 of Customs Act. Against the said order, the appellant is before me. 3. A preliminary objection was raised by the Ld. AR that as per proviso to section 129A (1) (d), the appeal is not maintainable before this Tribunal being baggage as any goods imported or exported as baggage, the appeal is not maintainable before the this Tribunal. The Ld. AR further submitted that as it is a case of baggage goods, therefore, the appeal is not maintainable before this Tribunal. 4. The Ld. AR was heard and the issue arose whether the goods i.e. the gold in question is imported or exported goods as baggage or not? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given above and he has failed to produce any valid documents to discharge the burden of proof under section 123 of the Act. Therefore, it appears that the said gold biscuit has been smuggled into India without following the proper import procedure and without payment of appropriate customs duty. 7. In counter, the contention of the Ld. Counsel is that the market enquiry was conducted in respect of valuation of impugned goods. There was no test of gold was conducted nor any report is placed on record. There are neither any expert opinion nor any market enquiry was conducted to establish that the gold in question is of Foreign Origin. Further, there is no evidence referred in order-in-original and the impugned order to substantiate that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Haryana High Court in the case of CCE Vs. Max G.B. Ltd. 2008 (221) ELT 491 (P H)also held that show cause notice is vague on specific violation not sustainable. He also relied on the decision of this Tribunal in the case of Delco Precitone Jewellers (P) Ltd. vs. CC 2000 (124) ELT 1105 (T) wherein it has been held that imposing penalty without arriving at any specific finding with reference to clause (a) or (b) of section 112 of Customs Act is not sustainable. He also relied on the decision of Hon ble Madras High Court in the case of B.Lakshmichand vs. Government of India 1983 (12) ELT 322 (Mad). 8. He further submitted that the adjudicating authority has erred in upholding that the appellant has not discharged the burden under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question are imported goods. Therefore, he prayed that the impugned order is to be set-aside. 9. On the other hand, the Ld. AR submits that in terms of Section 123 of the Customs Act, the appellant has failed to discharge the burden that the goods in question are not imported goods or have been imported. Therefore, she further submitted that the document dated 14.04.2015 of Shah jewellers, produced is a mere estimate and not a valid document in support of the appellant as the gold is a prohibited item under Section 2 (33) read with Circular 34/2013 dtd. 04.09.2013 and as per harmonious construction of the Customs Act, any smuggled goods can be seized anywhere in India and legal proceedings initiated by the Customs against persons from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on gold in question is freely available in the Indian market and at the website www.indiamart.com , the goods can be purchased by any Indian. 13. In that circumstances, revenue has failed to discharge that they are initial burden that on reasonable belief that the goods in question are smuggled goods. Further, it has been found that only market enquiry was done for valuation and purity of the goods in question. No fact has been brought on record by way of testing of the goods in question that the marking made on the goods are genuine or not. As no such investigation has been done to establish that the goods in question are of foreign origin, therefore, the provision of Section 123 of the Customs Act is not applicable to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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