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TMI Blog2024 (2) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... e put by the particular foreign company in ordinary course of business. Admittedly, there is no evidence in the present case that the foreign markings appearing on the seized gold bars had indeed been put by the foreign companies whose markings they purport to be and that therefore as laid down in the aforesaid judgment of the High Court no presumption of the foreign origin of the goods can arise from such markings. It is further observed that even when established that the seized Gold Bars were of foreign origin, that by itself does not establish the smuggled nature of the gold, as import of gold into India is not absolutely prohibited and there is large quantity of gold which is legally imported and is available for sale in the local market and hence merely because the seized gold had foreign markings that itself is not sufficient to infer that the same was smuggled into India. Reasonable belief cannot be based on suspicion or speculation or merely on the ground that the person from whom seizure was effected was unable to account for the same and that to form reasonable belief there must be some evidence to show that the goods were brought into the country contrary to prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAMESH NAIR The present appeals have been filed against Order-In-Appeal No. AHM-CUSTM-000-APP-129 130-23-24 dated 24-07-2023 by which Commissioner of Customs (Appeals) Ahmedabad has upheld the Order-In-Original dated 30-06-2020 interalia confiscating absolutely seven gold bars having foreign make marking and market value of Rs. 22,96,000/- seized from the possession of appellant, Shri Pawan Subhash Verma who was enroute to New Delhi from Surat in a car. Appellant, Shri Subhash Verma was also travelling in the same car and is the father of Pawan Verma. 1.1 Briefly the facts are that appellants are engaged in making jewellery at their shop, Shriram Jewellers situated at Begumpura Main Road, Section 22, Rohini, New Delhi. They were travelling from Surat to New Delhi by car along with Shri Pramod and Shri Vishal Dabas on 29.10.2018 during which the officers of DGGI, Vadodara acting upon intelligence, intercepted the car around Vadodara Bharuch toll plaza. Shri Pawan Verma, when asked, informed the officers that he was carrying 1600 grams of Gold with him. The officers of DGGI after carrying out search of the car and of the appellants, so found the sixteen bars of gold wrapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice was issued to the appellants by which the appellants were called upon to answer as to why foreign-origin, smuggled, seven gold-bars of 100 grams each valued at Rs. 22,96,000/- should not be confiscated absolutely under section 111(d) of the Customs, Act, 1962, nine gold-bars of 100 grams having market value of Rs. 29,52,000/- of MMTC PAMP markings should not be confiscated under section 119 of the Act for having used for concealment of smuggled seven gold-bars, eight gold-bars each weighing 100 grams valued at Rs. 21,60,000/- purchased by the appellant in the past should not be confiscated absolutely under section 111 (d) of the Customs Act, 1962 and that penalty should not be imposed upon the appellants under section 112 (b) of the Act. 1.7 The Joint Commissioner of Customs adjudicated the show cause notice by which he ordered absolute confiscation of seven gold-bars having market value of Rs. 22,96,000/- seized from the possession of appellant- Shri Pawan Verma holding that the said gold bars had foreign make marking without any purchase details produced are to be held as smuggled ones. As regard, nine gold-bars with the MMTC PAMP marking held to be of Indian ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled nature of such gold as foreign gold can be legally imported into India and is not prohibited item. He relied upon the following decisions in this behalf: State of Maharashtra v Prithviraj Pokhraj Jain 2000 (126) ELT 180 (Bom). Pukhraj Nihalchand Jain v Commissioner of Customs 2003 (154) ELT 715 Lalchand D. Kothari v Commissioner of Customs 2001 (136) ELT 525 2.2 It was further submitted that admittedly gold seized from possession of the appellant was not found in concealed manner, and that it is inconceivable that nine gold bars held to be of Indian Origin were used to conceal seven gold bars having foreign markings. As regards the eight gold bars, it was submitted that there is no evidence in this behalf to establish that the same were smuggled gold and in any event allegation of purchase of such gold in the past based solely on the statements of appellants dated 30.10.2018 and 01.04.2019 is not tenable and deponents of the said statements having not examined in terms of section 138B of the Act, no reliance can be placed on such statements. Consequently, based on such statements, the case of the department that appellants have purchased smuggled gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the goods and that such markings do not speak for themselves and are in the nature of hearsay evidence. It is held in the said judgment that no presumption about the foreign origin of goods arises from the foreign markings unless there is evidence to show that the same were put by the particular foreign company in ordinary course of business. Admittedly, there is no evidence in the present case that the foreign markings appearing on the seized gold bars had indeed been put by the foreign companies whose markings they purport to be and that therefore as laid down in the aforesaid judgment of the High Court no presumption of the foreign origin of the goods can arise from such markings. It is further observed that even when established that the seized Gold Bars were of foreign origin, that by itself does not establish the smuggled nature of the gold, as import of gold into India is not absolutely prohibited and there is large quantity of gold which is legally imported and is available for sale in the local market and hence merely because the seized gold had foreign markings that itself is not sufficient to infer that the same was smuggled into India. Reliance in this behalf is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that seized gold was smuggled into India. The said allegation of the smuggled nature of gold is not supported by any evidence at all since no person is alleged to have so smuggled the said gold identified and found. In view of above, confiscation of seven gold bars cannot be sustained. 4.2 Similarly, no assumption can be made in respect of eight gold bars as foreign origin and smuggled gold alleged to have been purchased from Shri Lalaji from Surat in the past. The said allegation is solely based upon the statements dated 30.10.2018 and 01.04.2019 of appellants in which there is admissions that all sixteen gold bars were of foreign origin which contradicts with the fact that out of those sixteen, nine gold bars were released as the same were held to be of Indian Origin. Further, no other details shown from the statements as to how such gold can be said as foreign origin or smuggled. This shows that statements are not reliable. Moreover, no deponents of the statements have been examined/cross examined by the adjudicating authority in terms of mandate of section 138B of the Act and as such no reliance can be placed on such statements which are not relevant in view of settled lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant used Hyundai Verna Car for carrying/transporting and concealing seven foreign origin smuggled /nine MMTC -PAMP gold bars. He has further held that the car through which appellants were travelling had been bought from Shri Sanjiv Kumar, New Delhi through verbal agreement and the transfer of ownership was yet to be happened and thus car still does not belong to the appellant as the transfer of registration was pending and that in that view appellant is not even authorized to raise contention on the confiscation of the car. Admittedly appellant was found in possession of the car, undisputedly seized gold was not found concealed manner in the car, further in view of above discussion, it is not established that seized gold was smuggled one. Consequently, section 115 of the Act is not applicable and hence confiscation of car and redemption fine so imposed also cannot be sustained. 5. In view of foregoing, the impugned order is liable to be set aside. Since confiscation of gold is not tenable, fine and penalty is also cannot be sustained. Accordingly, the impugned orders are set aside. Appeals are allowed with consequential relief, if any, in accordance with law. ( Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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