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TMI Blog2023 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... WB/2017-18 dated 12.12.2018. 3. The so seized gold was examined by M/s.A.B. Kundu Jewellers, a Govt. approved valuer, who issued certificate that the recovered yellow metal is made of 24 Karat Gold weighting 1000.000 Grams valued at Rs.30,50,000/- at the prevailing rate on 12.12.2018. 4. The representative samples drawn from the seized gold were forwarded to the Chemical Laboratory of Custom House, Kolkata to ascertain the Nature, Composition & Purity of the gold vide Test Memo dated 14.02.2018. 5. In the statement so tendered by the said respondent No.1, it was interalia stated that he is engaged in facilitating melting of 10 Tola Bars believed to be gold of foreign origin just to hoodwink the department and to avoid himself being caught by the department. Subsequently, the statement was again recorded on 13.02.2018 when the earlier statement so tendered was repeated and reiterated before the authority concerned. However, as appear from the records of the present case, the said statement has been retracted by the respondent No.1 vide letter dated 15.02.2018 before the office of the Superintendent of Customs. In the said letter, the respondent No.1 had stated the earlier stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vide Issue Voucher No.61 dated 12.12.2018 and he had handed over the seized gold bar to his employee (Respondent No.1) for the purpose of handling over to Sri Sachin Gupta of M/s. Akriti Jewellers (P) Ltd. 8. Further investigation was also caused with M/s. Maa Ambey Jewellers when it is revealed that the Tax Invoices submitted by the Respondent No.2 are genuine and payment was also made for the goods being sold to the respondent No.2. 9. However, the aforesaid Show Cause Notice VIII(10)20/IMP/CL/P&I/CC(P)/WHB/17-18/974-975 dated 07.08.2018 was issued upon the lower authority to the respondents herein proposing confiscation of seized goods i.e. one piece of gold bar having total weight of 1000.00 grams valued at Rs.30,50,000/- in terms of Section 111(b) & (d) of the Customs Act, 1962 and imposition of penalties in terms of Section 112(b)(i) of the Customs Act, 1962 on both the appellants for the alleged act of smuggling of origin gold. 10. The adjudicating authority absolutely confiscated the seized gold and imposed penalty on both the respondents. The said order was challenged by the respondents before the Ld.Commissioner(Appeals), who after examining the defense reply file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Guarantee towards provisional release of the seized gold. (e) It is, therefore absolutely explicit and unambiguous that Shri Sachin Gupta, subsequent to his letter dated 16.02.2018, DID NOT STATE in any of his said letters dated 06.03.2018 and 15.03.2018 to the department that - (i) there was any change (inclusion or exclusion of any stock of gold) in the copy of stock register showing closing balance as on 12.02.2018 as submitted voluntarily by him with his letter dated 16.02.2018, staking claim on the seized gold. (ii) there was any change in the copy of the voucher no.00061 dated 12.02.2018 (purportedly the basis of issuing 18 pcs. Gold of 99.5 purity from daily transaction to Ramesh Disale) which was submitted to the department by him on 16.02.2018, staking claim on the seized gold. (f) In obedience to the Order dated 12.06.2023 passed by this Tribunal, the Ld.Advocate of the Respondent submitted a letter on 22.06.2023 along with enclosures. It can be observed that there is gross discrepancy between the documents submitted by Shri Sachin Gupta along with his letter dated 16.02.2018 vis-à-vis the documents submitted by the Ld.Advocate on behalf of the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following decisions:- Sl. No. Citation/Case Laws relied upon Relevant Paras 1 Cus Appeal No.30400 of 2022 (SM)-Final Order No.A/30092/2023 CESTAT, Hyderabad Bala Nagu Naga Raju Vs. Commr. of Central Tax, Guntur GST 1.1, 4, 6 to 9 2. Cus Appeal No.76086 of 2016 Final Order No.76536-39/2023 CESTAT, EZB, Kolkata R.K.Angangbi Singh Vs. Commr. of Customs (Prev.), Shillong 2,3,5,6 13,14,15 17,18,19 3 2019 (366) E.L.T. 402 (Ker.) Commissioner of Customs, Cochin Vs. Om Prakash Khatri 12,13,14 18,19,22 4. 2019 (368) Commissioner E.L.T. A155 (S.C.) Om Prakash Khatri Vs. 1 13. On the other hand, the Ld.Advocate for the respondents submits as under:- 1. At the preface it is strongly urged that the appeals so preferred by Revenue against the said O/A dated 14.08.2020 Is not maintainable for reasons which shall be discussed in detail herein below. 2. To begin, the respondents would like to draw reference to the National Litigation Policy which was introduced vide Instruction F. No. 390/Misc./163/2010-JC, dated 20-10-2010 whereof in para 5 & 6, it is directed that:- "5. The Board has decided that appeals in the Tribunal shall not be filed where the duty involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department being aggrieved is required to file more than one appeal against the said Tribunal order, then each appeal shall be subject to the monetary limit prescribed." 4. Presently for customs case, Board vide its distinct Instruction F. No. 390/Misc/163/2010-JC, dated 17-12-2015 has directed revenue not to prefer any appeal below Rs. 10 Lacs. in CESTAT. Now that the in the facts and circumstances of the present the penalty so imposed upon the respondents herein is less than the threshold limit, in light of the said instruction, no appeal should, have been preferred. As such when the appeal itself is not maintainable than the same stands of no merit. Hence, the appeal so preferred by the department holds no good. In support of the same the respondents would like to draw reference to Final Order No. 75034-75035/2023 and Final Order No. 75052-75056/2023. 5. In a similar situation, in the case of Buhariwal Logistics reported in 2016 (332) ELT 278 (Del) it has been inter alia held in Para 13 that penal quantum is the determining factor to prefer appeal. Para 13 read as follows:- "13. As regards the second preliminary objection, the appellant is in appeal against the deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is not valid nor that it is contrary to the terms of the statute. (2) Despite the decision of this Court, the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. (3) A show cause notice and demand contrary to the existing circulars of the Board are ab initio bad. (4) It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars." 17. Similar reiteration of law can be found in a latter judgment of the Hon'ble Supreme Court in Union of India and others v. Arviva Industries India Limited and others - (2014) 3 SCC 159 = 2007 (209) E.L.T. 5 (S.C.) = 2008 (10) S.T.R. 534 (S.C.)." 7. Now if the case is supposedly to be decided on merit than the following contentions may kindly be taken into consideration-: i. That a question has been posed before Shri Sachin Gupta asking him that if the 1000 grams of gold biscuit was obtained from 18 cut pieces then how was the same obtained when it has been specifically quoted by Shri Sachin Gupta that he had purchased gold from M/s Maa Ambay jewelers. To this the claimant contends that though the gold was purchased in bar form but in the course of trade va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so-called retraction dated 15.02.2018 states that he has been made to write several statement regarding so-seized note book where as the fact of the matter is nothing has been written about the so- seized note book by Shri BajrangIngole either in his statement dated 12.02.2018 or his statement dated 13.02.2018.To this, it is submitted that such a ground is absolutely beyond the periphery of the Show Cause Notice and is a resultant afterthought and hence, the said ground is not maintainable. Reliance is placed in the case of Toyo Engineering reported in 2006(201) E.L.T. 513(SC) and also in the case of Sudarsan Jana reported in 2017(357) E.L.T 656 (Tri-Kol). vii. In the grounds of Appeal No. (iv), it has been inter- alia agitated that the Shri BajrangIngole has never appeared before the Custom Authorities and his retraction is typed and not hand written and also that the he had only expressed his fluency in Hindi and had only written in the Original Statement in Hindi and therefore, his subsequent retraction is appeared to be tutored and not genuine.To this, at the first instance, it is submitted that such ingredients of the said Grounds of Appeal being alleged to be tutored and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Order-in-Original whereof the seized goods was proposed to be confiscated respectively. x. In the Grounds of Appeal No. (vii), it is inter-alia agitated that "Shri Sachin Gupta, never procured any documentary (or otherwise) evidence as to the source of procurement of the said 18 pieces of gold of 99.5% purity".To this, it is submitted that such a ground is absolutely falsely based. Since with the procurement of the invoices along with issue invoice dated 12.02.2018, clearly shows that the goods was having 99.5% purity. It is also submitted, it was never into question in dispute whether the goods is having 99.5% purity or not because such standard of purity was never been disputed by the claimant. xi. In the Ground of Appeal No. (viii), it has been inter-alia alleged that "clearly, Shri Sachin Gupta created a false story about a non-existent employee to cover up the story a non- existent/forged voucher. It is pertinent to mention that in consistency in fact are not extremeimportance and relevance before any fact finding authority". To this, it is submitted that the fact of presence of issue voucher and/or Shri Nitin Karley one of the employee of the claimante comes from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en found to form the opinion that the gold in question is smuggled one. 18. To decide the issue this Tribunal in the case of Shri Balwant Raj Soni & Others v. Commissioner of Customs (Preventive), Patna vide Final Order No.75455-75457/2023 dated 18.05.2023 has examined the issue and observed as under:- "19. The Appellants also relied upon 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 are reproduced below: 19.1 The Appellants stated that ' Reasonable belief' must be at the time when the goods are seized and not subsequent to seizure. "54. The other question which was argued before me was that the customs officer did not act on any reasonable belief when he searched the petitioner's premises on 15-12-1967 and seized the goods. Section 110 opens with the words "if the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods". What is the meaning of "reasonable belief"? Did the officer entertain reasonable belief in the facts and the circumstances of this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 goods must be smuggled goods. The word `smuggled' means that the goods were of foreign origin and they had been imported from abroad. Only then does the presumption under Section 123 arise. The goods themselves did not suggest that the petitioner was an old smuggler or a dealer in smuggled goods. If there was such information with the customs, they ought to have disclosed it. The goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. There is no document available on record to establish that gold bars/pieces were smuggled into India from Bangladesh. The impugned order has concluded that the said gold bars/pieces were smuggled into India only on the basis of assumptions and presumptions without any concrete evidence to substantiate this claim. Hence, we hold that material evidence available on record does not establish that the gold bars/pieces were smuggled into India without any valid documents. Accordingly, answer to question (i) above in para 13 above is negative." 19. It is apparent from the records itself that it is a case of town seizure. The purity of gold is 99.5% and having no embossing of foreign mark, in that circumstances, revenue has failed to prove reasonable belief that being the gold in question is smuggled one. In the absence of that the impugned gold cannot be seized under Section 110 of the Customs Act, 1962 and therefore the gold in question is not liable for confiscation and no penalty is imposable on the appellant. In view of this I do not find any infirmity in the impugned order. The same is upheld and the appeals filed by the revenue are dismissed. ( Order pronounced in the open c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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