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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 ..... h 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. 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. There are no infirmity in the impugned order - the appeals filed by the revenue are dismissed. - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) Shri S.Chakraborty, Authorized Representative for the Appellant (s) Shri Debaditya Banerjee, Advocate for the Revenue ORDER ASHOK JINDAL : Revenue is in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not attend the same. Furthermore, Summon was again issued but the same was returned as not being delivered. 6. Further, the respondent No.2 i.e. Sri Sachin Gupta, Director of M/s. Akriti Gupta Jewellers Pvt.Ltd., Kolkata vide letter dated 16.02.2018 submitted before the office of the Superintendent of Customs, whereof, it was stated that the gold belongs to the Company M/s. Akrity Jewellers (P) Ltd. and he being in the capacity of Director had claimed the so-seized gold. It was stated that the seized gold bar was procured by him by melting 18 small pieces of gold into a single gold bar. It was also stated that the 18 pieces gold were given by him to Sri Ramesh Disley to melt it and to form it into a single piece. The so seized gold bar was given by Sri Ramesh Disley to Sri Bajrang Ingole to deliver it to the respondent No.2 and on the way, it was intercepted by the P I Branch. In support of his claim, he had submitted Issue Voucher, Item Register reflecting possession of gold on 1129.9842 grams and purchase viz Tax Invoices Nos.1890/17-18(M/s. Maa Ambey Jewellers) dated 07.02.2018 of 827.630 grams, Tax Invoices Nos.1940/17-18 (M/s. Maa Ambey Jewellers) dated 12.02.2018 of 583 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 upto 28.02.2018 as submitted by Sachin Gupta vide his letter dated 16.02.2018, it was seen that the purchase of three gold bars (purity not mentioned) on different dates from Maa Ambey Jewellers vide three invoices are clearly reflected and the transactions were found to be genuine. (c) As on date of seizure i.e. 12.02.2018, the Item Register clearly reflects the Closing quantity, Rate and Value of gold as 1129.9842 gms., 2890.65 and Rs.32,66,391.69 respectively. This document was submitted by Sri Sachin Gupta on 16.02.2018 himself, on his own volition, voluntarily, for claiming the seized gold. Further, in his said letter, he had stated that 18 pieces have been procured from daily transaction of gold of 99.5 purity and handed over to Ramesh Disale for melting to form a single piece so that it could be sold in bar form. However, no inclusion or mention of such 18 pieces of gold could be found in the copy of the Stock Register (closing balance as on 12.02.2018) submitted by Sachin Gupta on 16.02.2018 Hence, there could be no ambiguity whatsoever that as on 12.02.2018 (date of seizure), the Closing quantity, Rate and Value of gold was 1129.9842 gms., Rs.2890.65 and Rs.32,66,391. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been an addition of this Vch No. against the name of Ramesh Disale for 1000 gms. Therefore, in view of the grounds as mentioned as at e above, it is abundantly clear and explicitly supportive of the contention that the documents now submitted on 22.06.2023 before this Tribunal is a clear manipulation of records to justify an act of smuggling. (ii) In the photocopy produced by Mr.Sachin Gupta on 16.02.2018 of the voucher no.00061 dated 12.02.2018 for 1000 gms gold to Ramesh Disale (Smith Issue Voucher) the typed description of goods SILVER was replaced with Gold in handwriting. No other insertion/entry is seen. In the document submitted before this Tribunal on 22.06.2023, it can be seen that there is an insertion in the voucher i.e. 0076 just before 00061 and this insertion has been deliberately an dmaliciously made to legitimize the supply of 1000 gms. gold to Ramesh Disale (Stock Journal I.V. 076/17-18). This is again totally at variance from the documents originally submitted by Mr. Sachin Gupta on 16.02.2018 to claim the gold. Therefore, in view of the grounds as mentioned as at e above, it is abundantly clear and explicitly supportive of the contention that the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, no appeal shall be filed before the High Court. 6. Adverse judgments relating to the following should be contested irrespective of the amount involved : (a) Where the constitutional validity of the provisions of an Act or Rule is under challenge. (b) Where notification/instruction/order or Circular has been held illegal or ultra vires. (c) Where audit objection on the issue involved in a case has been accepted by the Department. In the present case, no duty is charged upon the respondents herein, therefore, in light of the instruction cited above, the decisive factor shall be the penalty, as the words total revenue only includes duty, fine and penalty not the value of the goods and also that the SCN was issued only to impose penalty upon the respondents herein. Since, the penalty quantum isless than Rs. 10 Lacs, no appeal is maintainable before this Hon ble Forum. 3. Board vide its distinct Circular has also clarified the words case vide its Instruction F. No. 390/Misc/163/2010-JC, dated 26-12- 2014 in para 4, which reads as follows:- 4. The Instructions mentioned above used the word case . However, the same was not defined. The term case needs to be interpreted in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 (H.P.) whereof in para 15, 16 17, it has been held as follows:- 15. It is more than settled that the circulars issued by the Board are binding on the department and the department cannot be permitted to urge that the circulars issued by the Board are not binding on it. This has so been held in a series of decisions of the Hon ble Supreme Court and reference in this regard can conveniently be made to NavnitLal C. Javeri v. K.K. Sen - AIR 1965 SC 1375, Ellerman Lines Ltd. v. CIT - (1972) 4 SCC 474, K.P. Varghese v. ITO - (1981) 4 SCC 173, Union of India v. AzadiBachaoAndolan - (2004) 10 SCC 1, CCE v. Usha Martin Industries - (1997) 7 SCC 47 = 1997 (94) E.L.T. 460 (S.C.), Ranadey Micronutrients v. CCE - (1996) 10 SCC 387 = 1996 (87) E.L.T. 19 (S.C.), CCE v. JayantDalal (P) Ltd. - (1997) 10 SCC 402 = 1996 (88) E.L.T. 638 (S.C.), CCE v. Kores (India) Ltd. - (1997) 10 SCC 338 = 1997 (89) E.L.T. 441 (S.C.), Paper Products Ltd. v. CCE - (1999) 7 SCC 84 = 1999 (112) E.L.T. 765 (S.C.) and Dabur India Ltd. v. CCE - (2004) 13 SCC 107 = 2003 (157) E.L.T. 129 (S.C.). 16. In Commissioner of Customs v. Indian Oil Corporation Ltd. - (2004) 3 SCC 488 = 2004 (165) E.L.T. 257 (S.C.), the Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the grounds of Appeal No. (i), it is agitated that since the seized goods was in the possession of Shri BajrangIngole, burden to prove in terms of Section 123 lies upon him.It is submitted that Section 123 (a) (ii) of the Customs Act, 62 clearly states that burden also lies on any other person, other than the person from whose possession, the goods were seized, claims to be the owner, to prove that the goods is not smuggled. Therefore, the procurement details being submitted by the claimant i.e. Shri Sachin Gupta, (respondent) is legally tenable in the cause of discharge of burden under Section 123 of the Customs Act, 1962.In support of this contention reliance is place in the case of T.V. Mohammed reported in 2014 E.L.T 73(Kar) which clarifies Section 123 of the Customs Act, 1962. v. In the Grounds of Appeal No. (ii), it is inter-alia agitated that statement recorded under Section 108 of the Customs Act, 1962 is admissible evidence and retraction of the same is an afterthought, hence, retraction cannot interfere with the evidentiary value, which the Ld. Commissioner (Appeals) has failed to appreciate. To this, reference is drawn to paragraph 16 and 17 of the Order-in-Appeal da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. (v), it is inter-alia agitated that 18 pieces of gold bar being melted and formed into one single gold bar cannot attract Zero loss and/or difference in purity percentage. To this, it is submitted that such a Grounds of Appeal is essentially an assumption and cannot at all form a basis towards confirmation of the proposed confiscation. Reference is drawn to paragraph 20 of the Order-in-Appeal whereof such change in form is dealt and answered by the Ld. Commissioner of Customs (Appeals). It is also submitted that Shri RameshDisaley has himself accepted the fact the he has melted the said 18 pcs. of gold bar in his voluntary statement. Accordingly, the said ground is not maintainable.To add further, it is urged that from the very beginning it has been stated that the 18 gold cut pieces were melted and not refined. So melting the cut pieces just once to form the same into a single piece of bar can only cause negligible difference in purity and not much. ix. In the Grounds of Appeal No. (vi), it is inter-alia agitated that since the claim of ownership of the claimant (Shri Sachin Gupta) is solely based upon an issue voucher dated 12.02.2018, existence of the same is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, was never corroborated by Shri BajrangIngole. Moreover, it is stated that the ownership claim of the claimant (Shri Sachin Gupta) was never proved to the satisfaction of department by conclusive evidence. To this at the first instance, reference is drawn to paragraph 20 of the Order-in-Appeal. Moreover, it is submitted that such a ground is falsely based and content of mis-representation of fact and is also otherwise contrary to the statutory provisions. Similarly, the Grounds of Appeal No. (x) is denied, disputed. In view of the discussions made hereinabove, the respondents herein most humbly prays that the instant appeal may kindly be rejected with consequential relief in favour of the respondent. 14. Heard the parties, considered the submissions. 15. On going through the records placed before me, the seizure Memo dated 12.02.2018 depicts the description of the gold in question as under:- Yellow metal believed to be gold of foreign origin having inscription of 2(two) Swastika symbol in one side of the bar collectively Weighing 1000 gms. The Seizure Memo is extracted below:- 16. Further a test report was also obtained which shows that the gold contain is 99.5% of weight. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble belief is that the seized goods were not accounted for by the petitioner on 15-2-1967 when the officer seized the goods from his possession. The seized goods consisted of 20 items of ornaments and diamonds. Out of these six items were released before the show cause notice was issued. One item was released at the adjudication stage. Six items were released by the Board on appeal. Only 7 items have been confiscated. These consist of 2 packets of diamonds and 5 ornaments. The petitioner claimed that they belonged to the queen mother of Nepal. A letter was written to queen mother. On her behalf a reply was received that she had given certain ornaments to the petitioner for polishing, remaking etc., though not for sale. But this was done later on. The letter was written on 3-7-1967. The reply was received on 24-7-1967. But at the time of seizure all that the officer had before him were 2 packets of diamonds and 5 ornaments. Neither the diamonds nor the ornaments had any foreign markings or label to suggest to the customs that these were smuggled goods. In the search list these two packets of diamonds are described as appearing to be diamonds . This shows that the customs officer did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved : there is no definite evidence to show that the appellant knew or had reason to believe that those items were smuggled. In the absence of this evidence the penalty imposed is not justified. The Board accordingly remits the personal penalty in full . If the petitioner did not know that the goods were smuggled, how could the customs officer reasonably believe that the goods were smuggled. The petitioner knew better. 62. The customs officer merely thought that as the goods had not been accounted for these are smuggled goods. At the time of seizure what happened was this. The petitioner was present at the shop. He told the customs officer that they were duly entered in his account books but his accountant had gone to the income tax officer. The officer did not wait for the man to arrive to explain the entries to him. He seized the goods and took them away. This was not a case of reasonable belief. It was a case of suspicion. A case of speculation. A case of guess work. 63. As a result Section 123 did not apply to the case. There was no reasonable belief. No presumption could be raised under Section 123. There was no obligation on the petitioner to prove that the goods were not sm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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