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TMI Blog2022 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... Refinery Pvt Ltd, Hamirpur, Himachal Pradesh. Rest of the gold bars were bearing foreign markings. Investigation was conducted with the driver of vehicle Sh. Mohammad Sarfaraz Hashmi, Sh. Rajwant Singh and the appellant. During the pendency of the investigation, the appellant filed an application for provisional release of the seized gold bars on 17.09.2021 under Section 110A of the Customs Act, 1962. The said request was rejected on 11.10.2021. On 02.11.2021, a show cause notice was issued to the appellant by DRI proposing confiscation of the seized gold bars under Section 111(a), (b), (h) & (m) of the Customs Act, 1962. Thereafter, the appellant has filed another application on 21.02.2022 for release of the seized gold provisionally. The said request was rejected by the impugned order. Against the said order, the appellant is before us. 3. The ld. Counsel for the appellant submits that the appellant has purchased the gold bars from the registered dealer who issued tax invoice and filed returns in terms of Goods & Service Tax Act, 2017 and the transaction between the appellant and the supplier has been reflected on the GSTN portal in Form GSTR-2A of the appellant. Out of these 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the smuggling activity of foreign origin gold along with his associates who (the appellant) has claimed the ownership of the gold in question. We further take note of the fact that during the course of investigation, the statement of the supplier was also recorded. Statement of Sh. Rajat Gupta, prop. of M/s Shri Girraj Ji Jewellers, Mathura was also recorded who stated that he supplied 5 kgs gold bullion to Sh. Mayank Agarwal under Invoice No. 13 dated 30.06.2021 wherein the description of gold was not mentioned. The said gold bricks sold by him to M/s Maa Janani Jewellers were totally different from one as recorded in the recovery memo. Gold supplied by him under Invoice No. 13 dated 30.06.2021 was in form of molded bricks on which no marking, identification number or serial number was mentioned whereas several different types of marks were mentioned on all the 5 recovered gold bars. No details/description of gold was mentioned in the invoice, the geniuses of the said invoice has not been disputed by the respondent. Further, no show cause notice has been issued to the supplier of gold who has issued the invoice. 7. On the basis of above observations, initially the question arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in nearly every case, bound to invite, in its inevitable wake, a show cause notice, proposing confiscation thereof. If the mere fact of issuance of such a show cause notice, and the allegations therein, are to be treated as sufficient to justify rejection of the prayer for provisional release, Section 110A would be reduced to a dead letter. 75. Allegations in a show cause notice are merely allegations, till proved, in adjudication. Where there to be no material, whatsoever, justifying clearance of the imported goods, such allegations may, conceivably, have a part to play, in examining the request for provisional release. Where, however, as in the case of the 25400.06 grams of gold jewellery, seized at the Airport in the present case, a duly registered and assessed Bill of Entry was present, the goods were apprised and found to be identical to the goods exported for exhibition, and the Bill of Entry had been signed by the Customs Import Clerk, as well as by the importer, we cannot fault the Learned Tribunal in having permitted provisional release of the gold jewellery. 76. We are not persuaded to change our view, on the basis of the various statements, recorded under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 9D of the Central Excise Act, 1944 which is, however, in pari materia, and in haec verba, with Section 138B(1)(b) of the Act.) Paras 19 to 21 of the judgment in Jindal Drugs (supra) may, for ready reference, be reproduced thus : "19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rival contentions and perusal of the records, we find that there is no cogent reason given for refusal to release the goods provisionally. Rather the impugned order is non-speaking and cryptic. This is clearly a case of non-exercise of discretion vested in him fairly, by the Revenue Authority, rendering the provision of Sec. 110A of the Act, practically otiose. 26. We find that gold jewellery which have been seized at IGI Airport by Directorate of Revenue Intelligence, totalling weighing of 50699.74 gms. is covered by two bill of entries : Bill of Entry No. 107190 dated 26 February 2019 giving a job No. 109524 dated 26 February 2019 which covers a quantity of 25.4000 kg. of gold jewellery, same has been assessed by the Assessing Officer on 24th April 2019. There is another bill of entry which is without any bill of entry registration number and without any job number, however, same has also been assessed as per the Learned Advocate for the appellant on 24th April 2019. This bill of entry also covers a gold jewellery weighing 25.209 kg. Thus, we find that importing person Shri Amit Pal Singh has presented the gold jewellery which was being imported on 24th April, 2019 to the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, dated 30th June 2017, read with the Clarification No. 21/2019, dated 24th April 2019 is that the goods should be same as has been exported for the exhibition purpose and in the present case it is not mentioned by the Department that re-imported goods are not the same which have been exported vide above-mentioned two shipping bills for the exhibition purpose. As per Section 2(33) of the Customs Act, 1962, the prohibited goods have been defined as follows : "Prohibited goods mean any goods the import or export of which is subject to prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with". When we analyse the seizure of "India made‟ gold jewellery at the IGI Airport in the light of above defition, we find that the gold jewellery was being re-imported after export of the same for exhibition purpose following the laid down procedure and standard operating procedure, barring a few minor lapses, and therefore the consignment of re-imported jewellery cannot be equated with import of prohibited go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the category of prohibited goods as the appellant prima facie has all the legal documents for rightful possession of the same. 29. The ruling of Madras H.C. in Malabar Diamond Gallery (supra) is not applicable, the facts being entirely different, that being a case of non-declared gold jewellary of Singapore origin, amounting to smuggling. Such facts are not obtaining in this appeal, as the appellant duly declared the goods under re-import at the Customs post (Red Channel). After examination, was issued Gate-Pass. The ruling in the case of Jagdev Damodaran (supra) is also not applicable, as in that case the passenger, NRI brought a "Drone‟ (Restricted item), for which license was required. 30. We also find that under the facts and circumstances, the appellant is an established business concern registered with the Customs dept, DGFT, Income Tax, GST, etc. Due to seizure of almost the whole working capital (Goods, raw material, W.I.P.), for over 6 months, the appellant is facing difficulty of livelihood, it‟s workmen, and others too. The appellant is also incurring regular fixed cost or establishment cost, unable to fulfill its time-bound export obligation, resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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