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TMI Blog2023 (10) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority is legal and proper and it does not warrant any interference. Appeal of Revenue dismissed. - HON BLE MR. R. MURALIDHAR MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri Subrata Debnath , Authorized Representative for the Appellant None , for the Respondent ORDER PER K. ANPAZHAKAN : These five appeals have been filed against the impugned order dated 23.05.2016, passed by Commissioner of Customs (Prev), Kolkata. As the issue involved in all these appeals emanate from the impugned order, all the five appeals are taken up together for decision. 2. In the impugned order, the Ld. Commissioner has ordered for release of the seized 6 pieces gold bangles, 16 pieces of gold sticks and I piece gold chain strip collectively weighing 1862.633 gms and valued of Rs.54,33,368/- in the absence of any evidence suggesting that the seized gold is of foreign origin and irregularly imported thus rendering the seized goods out of the purview of customs Act, 1962. He also dropped the proceedings initiated against the Respondents Sri Maran Saha, Shri Mantosh Dhar, Shri Vinod Kale, Shri Vipul and M/s Swarnalika Jewellers. Agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be located during the course of investigation. However, the other two Customers were found to be non-existent. The name of Shri Prakash Chandra Ghosh (ref. voucher no. 17 dt. 24.10.2013) did not surface during the course of investigation. Out of 21 nos of gold vouchers (received), resumed from Shri Dhar, only three customers had stated to have given gold/old and used ornaments to Shri Mantosh Dhar. (vii) In respect of the judgement of CEGAT, Eastern Bench, Kolkata in the case of Dattaji Deokar Vs. Commissioner of Customs, Bhubaneswar- I, [2002 (147) ELT 390 (Tri.-Kolkata) cited in the adjudicating order, it is submitted that in that case a portion of the seized gold biscuits, for which the appellant had furnished purchase records was released by CEGAT, whereas the rest of the gold biscuits under seizure were ordered to be confiscated. Hence, the ratio of the said judgement is not squarely applicable in the instant case. (viii) The Cash Memos dated 18.10.2013 seized from the possession of Shri Maran Saha were of purchase of old silver. It was found on enquiry that they relate to different types of silver ornaments sold to Shri Mantosh Dhar in quantities 934 gm and 920 gm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igin and hence the provisions of Section 123 of Customs Act, 1962 are not applicable. (iii) They have submitted 'Gold Vouchers' evidencing receipt of old gold for conversion into pure gold. (iv) the department has not furnidhed any evidence to substantiate the allegation that the goods are smuggled in nature. Accordingly, they prayed for rejecting the appeals filed by the department. 5. Heard both sides and perused the appeal records. 6. We observe that the issue to be decided in these appeals is whether the evidences available on record indicate that the goods seized in this case are smuggled in nature or not. We find that the Commissioner has given a detailed finding as to why the seizes goods are not smuggled in nature. The relevant portion of the order is reproduced below: I find from the facts and circumstances of the case, that the gold seized from Shri Maran Saha on 13.01.2013 was not proved to be smuggled into India for the reasons that: i) Nothing was concealed during interception of Maran Saha at the airport. On the 1st hand query whether he was carrying any costly item Sri Saha had told that he was carrying gold and silver. The goods were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the old silver were sold to the controlling partner of the Noticee firm as reflected in the SCN. v) Shri Mantosh Dhar in his statement dated 19.11.2013 admitted that the seized goods in the hands of Sri Maran Saha were all purchased by him from different customers and out of that he had given around 1846 GM to Sri Maran Saha to hand over the same to Sri Mahesh More of Ranaghat, Nadia, where the old gold s are refined in the refinery firm. He also handed over all the supporting documents to the investigating officers evidencing licit and legal ownership of the goods in his name and the name of his firm. I find that the burden of proof on the part of the notices under Section 123 of the Customs Act has been discharged with documentary evidence. The SCN itself confirms that the old gold was deposited from different customers against received voucher. vi) it had been recorded in the SCN that Sri Vinod Kale was not able to write in Hindi and English. Hence one Sri Vipul Yelpale co-worker of the refinery firm had written the statement of Sri Vinod kale. I find that in reply to the SCN it has been pointed out by the noticee and further submitted orally during the PH that no summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Mantosh Dhar and Sri Mahesh More. I find that lack of sustained investigation overlooking the details, lack of sufficient hard evidences to effectively turn down the claim of the noticee by the investigation and presence of documentary hard evidence on record corroborating the claim of the noticee on the contrary has contributed to the weakness of the SCN and have rendered the noticee with an opportunity to strongly defend their case. 7. We find that the gold seized were of 99.5 purity. There was no foreign marking available on the gold. In fact, they were in the shape of ornaments. The adjudicating authority has given a clear finding as to why the goods are not smuggled in nature. We agree with the findings of the adjudicating authority. In order to seize the goods, there must be a reasonable belief that the goods are smuggled in nature. The Appellant drawn our attention to the decision of the Hon ble Delhi High Court in the case of Shanti Lal Mehta Vs UOI and Others reported in 1983(14)ELT1715 (DEL), which elaborately dealt with Town seizures. The relevant portion of the Order is reproduced below: 54. The other question which was argued before me was that the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed as appearing to be diamonds . This shows that the customs officer did not believe them to be diamonds on any reasonable ground. The ornaments had no foreign label or making. They were ordinary ornaments as are worn in this country. There was nothing peculiar about them. Nothing extraordinary. On this material could any reasonable man entertain a belief that these were smuggled goods 59. The belief must be such as any reasonable man in the circumstances of the case would entertain about the existence or non-existence of a thing. Simply because the goods were not accounted for at that time does not necessarily mean that the goods were smuggled goods. Unaccounted goods may be stolen goods. Reasonable belief could be entertained either on the basis of some external indicia or on the basis of some internal information that the goods had been illegally imported into India from Nepal or some other foreign country either without payment of duty or in contravention of any restriction or prohibition imposed by statute. There was nothing to suggest the foreign origin of the goods. There was nothing to suggest the illegal importation of the goods into the country. 60. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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