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TMI Blog2022 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... oprietor of M/s. Dhanishta Gold on the intelligence that the said car was allegedly carrying smuggled gold bars. After completion of interception and inquiry, the DRI seized the gold. The investigation was culminated into issuance of the show cause notice whereby the proposal for absolute confiscation of the gold was made with imposition of penalties upon the Appellant and Co-appellants under Section 112(a) of the Customs Act. The Adjudicating authority confirmed the charges levelled in the show cause notice and absolutely confiscated the gold seized under panchnamadtd. 13.11.2016 from Skoda Car and office of the PGM Joyeria, Ahmedabad. The Appellants challenged the adjudication order before the Tribunal and the Tribunal vide final order No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the sensitive list, the department ought to have followed the procedure as prescribed under Section 110(1A). The department without following due process of law, as mandated under Section 110(1A) of the Customs Act, disposed of the gold. The procedure prescribed under the Act is not mere formalities. 3.1. He also submits that Section 150 of the Customs Act provides procedure for sale of goods and application of sale proceeds. Section 150 provides that where any goods not being confiscated goods are to be sold under any provisions of this Act, the same shall be sold through public auction or by tender or with the consent of the owner after notice to the owner. Central Board of Excise and Customs vide Circular No. 711/4/2006- Cus date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the gold seized by DRI. That the auction of the order for melting of gold was premature as the Customs Department did not wait for outcome of the Appeal filed before the Hon'ble CESTAT. 4. Per Contra the Shri. Dharmendra Kanjani, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue has argued that in the present case the Gold seized by the DRI was absolutely confiscated vide OIO No. AHM-CUSTM-000-COM-016-17-18 dated 09.03.2018. The Appellants had filed the Appeals before the Hon'ble Tribunal in June 2018. However, the Hon'ble bench had not passed any orders staying operations of the order passed by Adjudicating Authority. Language employed in Section -110(1A) ibid, is plain and clear wherein the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord, we find that the moot question to be decided herein is as to - Whether in view of the given facts and circumstances, the appellants are entitled to receive the differential value of the seized gold between the value prevailing on the date of melting i.e. 01.08.2018 and value as on the date of which the cheque was given to the Appellant. 6. Admittedly, against the order-in-original dated 09-03-2018 the appellants had filed the appeals before the Tribunal challenging / questioning the correctness of the entire impugned order passed by Ld. Adjudicating authority ordering for absolute confiscation of gold and imposing penalties on Appellants. During the pendency of the appeal, it appears that the department took steps to dispose of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. This Circular would not apply to cases where appeal is filed after the enactment of the amended Section 35F of the Central Excise Act, 1944 or Section 129E of the CustomsAct, 1962. 4.2 No coercive measures for the recovery of balance amount i.e., the amount in excess of 7.5% of 10% deposited in terms of Section 35F of Central Excise Act. 1944 or Section 129E of Customs Act, 1962, shall be taken during the pendency of appeal where the party/assessee shows to the jurisdictional authorities : (i) proof of payment of stipulated amount as predeposit of 7.5%/10%, subject to a limit of Rs. 10 crores, as the case may be; and (ii) the copy of appeal memo filed with the appellate authority; 4.3 Recovery action, if any, can be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, but the Department in a haste manner has disposed of the goods without seeking permission from the appellate court where the matter was sub judice. Thus, the Department has committed a serious mistake by disposing the disputed goods which was a subject matter of an appeal. 9. We also noticed that in the present matter department also not intimated the Appellants regarding the disposal of confiscated gold. The act of the department ex-part cannot be held as proper and legal. In the Kailash Ribbon Factory Ltd. 2002 (143) E.L.T. 60 (Del.) (supra), the Hon'ble Delhi High Court held that it is a serious lapse on the part of the department when it auctioned confiscated goods without permission of the Tribunal during pendency of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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