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TMI Blog2023 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner(Appeals), while passing the impugned order, therefore, it cannot be said that the appeals were filed beyond the time limit prescribed under section 128 of the Customs Act, 1962 - matter remanded back to the Ld. Commissioner(Appeals) to decide the issue on merits on the basis of various judicial pronouncements. Appeal allowed by way of remand. - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Ms.Atika Sumran Ahmed, Advocate for the Appellant (s) Shri A.K.Choudhary, Authorized Representative for the Revenue ORDER By way of these appeals, the appellants have challenged the confiscation of the impugned goods and imposition of penalty on them. 2. The facts of the case are that specific information was received by the officers of P I Branch, CC(P), WB, Kolkata that smuggled gold of foreign origin, after being smuggled into India is transacted at M/s. Gouri Gold House, 11/A/1, K.B. Basu Road, Barasat, near Allahabad Bank. The information was brought to the knowledge of the Assistant Commissioner of Customs, P I Branch, CC(P), WB, Kolkata who directed Customs officers to form a team headed by the Superintendent of Customs, p I Branch. The team reached th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription as Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER with serial number AA419935 of weight 100.00 grams, (7) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as SUISSE 100g 995.0 ESSAYEUR FOUNDER with serial number 236704 of weight 100.00 grams, (8) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as ARGOR.HERAEUS.SA. Switzerland 100g MELTER ASSAYER 995.0 with serial number AF2905 OF WEIGHT 100.03 grams, (9) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as UBS 100g GOLD 995.0 Switzerland MELTER ASSAYER with serial number 012908 (serial number tried to Erase by beating it) of weight 100.01 grams, (10) 01 (One) piece of yellow metal biscuit of medium size believed to be gold of foreign origin having inscription as Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER with serial number AA123297 of weight 50.02 grams, (11) 01 (One piece of yellow metal biscuit of medium size believed to be gold of foreign origin having inscription as Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER with serial number AA123294 of weight 50.02 gram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shri Simul Sarkar; he purchases gold with valid documents from M/.s VICKY JEWELLERY WORKS PVT.LTD. 12 Syakra Para Lane, Bowbazar M/s. Paul Gold House and Sons, 12/1 Syakra Para Lane, Bowbazar; that he had also purchased the gold biscuits without any documents form them; that the exercise book recovered from his shop premises showing the same records is his own and written/maintained by his staff; that some of the gold sold by him is through valid documents and rest is without any papers; that three pieces among the recovered gold from his shop premises during search operation on 24/10/2016 had been purchased on valid documents; that the file recovered from his shop premises showing purchase bills is his purchase documents of gold and he had put his signature on each page; that he had a passport and had last visited Bangladesh one and half years ago to attend his cousin s marriage. 7. That, an offence has been committed in violation of Section 7 (C) read with Section 11 of the said Act and hence seized the above recovered goods under Section 110 of the said Act, on the reasonable belief that the same had been smuggled into India and are liable to confiscation under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposed upon the appellants herein. Though Shimul Sarkar was not present at the time of seizure and when summoned had specifically stated in his voluntary statement dated 30.03.2017 that he was not involved in day to business transactions of the firm and the same was solely handled by Shri Pasanta Sarkar, he was still been made a party to the SCN as he happens to be one of the partners of M/s Gouri Gold. (3) The appellants in receipt of the said SCN were only granted with two opportunities of PH i.e. on 10.10.2017 and 22.10.2017 respectively. Despite seeking for re-fixation of PH the lower adjudicating authority went on to adjudicate the case ex-parte vide Order-in-original No. 19/ADC(P)/CUS/WB/2018-19 dated 23.07.2018 thereby depriving the appellants with three appropriate opportunities of hearing. Thus, the lower adjudicating authority failed to follow the principles of Natural Justice by not providing three opportunities of hearing upon your appellants which is against Circular dated 10.03.2017 and further went on to adjudicate the case ex-parte. As such the provisions laid down in Section 122A(2) has not been complied with in the instant case. The Lower Adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the officer concerned while seizing the goods. Therefore, deviation thereof, clearly depicts that the seizure so made is illegal and hence, the goods are liable to be released and in corollary thereof, confiscation U/s.111 of the CA, 62 is not at all warranted. Thus, when preliminary seizure of goods is in dispute the SCN proceedings becomes vitiated in nature thereby making the impugned order liable to be quashed. Be it be mentioned that Circulars too are equally binding upon the department and other authorities and as such the same must be complied with. (6) More particularly, the seizure list, so drawn, while seizing is also not at par with the Circular dated 08.02.2017, referred supra. Reasonable belief of the officer concerned being absent in the present case and the only safeguard for individual available under the Act ibid, the seizure is void-ab-initio. Hence, the goods are liable to be released unconditionally upon the appellant herein. Your appellant relies upon the following judicial principles:- The case of Ajit Bhosle reported in 2020 (374) E.L.T. 814 (Tri. - Kolkata); Seizure - Gold seized on suspicion that it was smuggled - Seizure of gold in cut pieces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the goods. Therefore, deviation thereof, clearly depicts that the seizure so made is illegal and hence, the goods are liable to be released and in corollary thereof, confiscation U/s.111 of the CA, 62 is not at all warranted. (9) The Hon ble Bench may be pleased enough to consider that the entire process right from seizure till adjudication in appellate stage has been conducted in a wrong and arbitrary manner which is beyond the parameters of law and as such your appellants right has been severely infringed in the process. Hence, the entire proceedings may kindly be dropped with consequential relief in favour of your appellants. (10) The investigating authority has grossly failed to corroborate their allegations and in absence of any conclusive proof the penalty is liable to be dropped. Also, may it kindly be considered that failure to produce documents in respect of the goods carried by a person does not ipso facto prove the same has been illegally imported by them. May it kindly be considered that the gold has been seized from the shop premises situated in Barasat which is far from Borders as such the question of illegal importation remains uncorroborated in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CA, 62. As regards for the rest gold (9 pcs) Shri Prasanta Sarkar had duly deposed the facts pertaining to procurement of the same which remains undisputed by any contradictory statement or finding. (12) For that it is ought to be considered that the appellants cannot be brought under the domain of Section 114AA of Customs Act, 62 which deals with situation of intentionally making or using declaration statement or documents which is false or incorrect in the transaction of any business for the purpose of Customs Act. The said Section is intended to penalize situation where there are paper transaction without any actual import or export of goods. In the present case, the department has no case that the transaction was paper transaction only and no goods were imported in the instant case and therefore, penalty imposed under Section 114AA of the Customs Act, 62 upon the appellants is not at all warranted (13) It is essential to be stated that the present appellants are in no way engaged illegal importation of any contraband goods.. Moreover, there is no evidence in the present case so as to suggest that they have omitted or committed any act which renders them liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he confiscable nature of the goods is key element for invocation thereof. From the Statements of the appellants, nowhere it appears that the appellants dealt in smuggled goods. Hence, there is no ingredients present in the statement which might in any way show that they engaged in illegal import of goods. As such the penalties imposed upon the appellants may kindly be set aside along with consequential reliefs thereto. 12. On the other hand, the Ld.AR for the department submitted that as the Ld. Commissioner(Appeals) has dismissed the appeal on time bar, therefore, he supported the impugned order. 13. Heard the parties, considered the submissions. 14. In the impugned order, the Ld. Commissioner(Appeals) has not decided the merits of the case, but held that appeals were filed beyond time limit prescribed under Section 128 of the Customs Act, 1962, that appeal is to be filed within 60(sixty) days from the date of receipt of the order and appellants have filed appeal after 70(seventy) days, but as no reasons have been explained by the appellants, satisfactory to the Ld. Commissioner(Appeals), the Ld. Commissioner(Appeals) dismissed the appeals. 15. I find that in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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