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TMI Blog2024 (7) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the Seizure Memo that the goods have been seized from conjoint possession of the appellant and Shri Rahul Malakar and under Section 110 of the Customs Act, 1962, on the reasonable belief, the said gold has been smuggled into India and liable for confiscation. Thereafter, the said gold was tested and the purity of gold was found to be 99.5% to 99.6%. The statement of the appellant was recorded on the same day, which was later on, retracted by the appellant and thereafter, the appellant claim the ownership of the gold stating that acquisition of gold was from his mother and the appellant has come to their brother's premises for some reasons. A show-cause notice dated 25.04.2019 was issued to the appellant for confiscation of gold and currency during the course of investigation. 2.1 The appellant contested the show-cause notice, but the adjudicating authority absolutely confiscated the gold and imposed penalty of Rs.3,50,000/- and the Indian Currency was released. No penalty was imposed on Shri Rahul Malakar. 2.2 On appeal before the ld.Commissioner (Appeals), the appeal was set aside and the adjudication order was upheld. 2.3 Against the said order, the appellant is before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the facts and circumstances of the case. As the gold does not have any foreign marking, moreover, it is a case of town seizure, therefore, the provision of Section 123 of the Customs Act, 1962, cannot be invoked unless and until there is no reasonable belief that the gold in question is of foreign origin. 8. In the case of Nand Kishor Sumani (cited supra), when the purity of gold was less than 99.99% and no foreign marking on the gold seized and it was a town seizure, in that circumstances, this Tribunal has held as under : "5. Heard both sides and perused the case records. The first issue required to be decided in these proceedings is whether 10 gold bars (1746.580 gms.) seized by the officers on 2-2-2012 are of foreign origin. The said 10 gold bars of different size and weight were seized on a reasonable belief of being smuggled as per the information of DRI and that the same is brought from Bangladesh and subjected to some retreatment. It is observed from the weighment sheet of seized 10 gold bars that the weight of these gold bars was ranging from 52.470 gms. to 344.720 gms. None of the two seized gold bars were having identical weights. There were no markings of forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the goods so seized. (2) This section shall apply to gold, and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." 7. It is true that as per the above provisions of Section 123 of the Customs Act, 1962 it is not required that gold should contain foreign markings and even gold in primary form or jewellary could also be covered as per the language of the provision. But whether onus of Indian origin on any primary gold or jewellery bearer is cast upon the person in possession of such gold. It may be appreciated that when the provisions of Section 123 of the Customs Act, 1962 were enacted the Gold Control Act was also in operation and gold was considered to be a very sensitive commodity. There was subsequent liberalisation in import policy with respect to gold and even foreign marked gold was allowed to be imported through baggage and through Banks on fulfilling certain conditions. On licit import these foreign marked gold bars can be freely bought and sold in India. However, if any person is found to carry a foreign marked gold in India without a bill then by simply having forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold seized by the Customs Officers from that person, is the same gold or not. But the said statement made by M/s. Chauhan Zevares further confirms that the sixteen pieces of gold were, in any case, purchased by Shri Kapildeo Prasad from the said M/s. Chauhan Zevares Pvt. Ltd. 13. The Tribunal in the case of S.K. Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) E.L.T. 415 (Tri. - Mum.) observed as under : - "7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any register nor is there any requirement to issue invoices under any Central Act." 14. In the case of Sri Samir Kumar Roy & Others v. C.C. (Prev.) West Bengal, Calcutta - decided by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f some other enactments like income-tax or sales tax laws but the same cannot be grounds for confiscation of goods under Section 111 of the Customs Act, 1962 when there is no iota of evidence that seized gold bars are of foreign origin or smuggled into India. Suspicion/presumption howsoever strong cannot take the place of an evidence. 8. In view of the above observations and the settled proposition of law, present appeals filed by the appellants are allowed by setting aside the order-in-original dated 6-2-2014 passed by the Adjudicating authority with consequential relief, if any." and the said order was affirmed by the Hon'ble Calcutta High Court and the facts are similar to the facts and circumstances of Nand Kishor Sumani (supra). 9. Therefore, respectfully relying on the above decision, I hold that the gold in question cannot be confiscated . Consequently, the confiscation of gold in this case is set aside and no penalty is imposable on the appellant. 10. In view of this, I set aside the impugned order qua confiscation of gold and imposing the penalty on the appellant. 11. In the result, the appellant is entitled to claim the gold in question and the appeal is allowed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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