9911796707
TMI Blog2024 (11) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s Ashish Ornaments House. In terms of Section 110 (1) of the Customs Act, 1962, the gold can be seized if the proper officer have reasoned to believe that the gold are liable for confiscation under the Customs Act, he may seize the gold, but in the seizure memo, nowhere it is mentioned that he has a reasonable belief that the gold seized in question on reasonable belief is liable for confiscation. We rely on the Board s Circular No.1/2017-Cus dated 08.02.2017, which prescribed that whenever the goods are being seized in addition to Panchnama, the proper officer must also pass an appropriate order (seizure memo/order/etc.) clearly mentioning the reasons to believe that the goods are liable for confiscation. In the seizure memo, nowhere it is mentioned that the proper officer is having reasoned to believe that the seized gold with reasonable belief is liable for confiscation. In that circumstances, the seizure is not legal. In Panchnama also, the gold has been seized, but nowhere it is mentioned that the proper officer is having with reasonable belief that the gold in question is liable to confiscation. In that circumstances, the gold cannot be seized. It is not a case of seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Rajendra Mishra that the goods so seized were of foreign origin and are being illegally imported into the country. It has been alleged in the Show cause Notice that the present appellant had failed to discharge his burden in terms of section 123 of CA, 62. As such, the proposition for confiscation of the seized gold U/s. 111(b) (d) of CA, 62 was made and thereby penalty in terms of section 112(b) as well as 114AA was proposed. 2.2 On 15.12.2023 in course of adjudication the Ld. Advocate of the appellant on his behalf had duly submitted his written reply to the SCN with all the relevant documents before the concerned authority wherein the entire allegation so framed in the SCN has been heavily denied and disputed. 2.3 Thereafter, the appellant was issued with Order-in-Original No. 27/CUS/JC/DRI PAT/2020-21 dated 28.12.2020 whereupon the seized 1299.850gms gold were confiscated and a penalty to the tune of Rs. 5,00,000/- under section 112(a) and 112(b) of the Customs Act, 1962 was imposed on Shri Rajendra Mishra, Shri Ashish Kumar Agarwal and Shri Praduminji Agarwal. And Under Section 114AA of the Customs Act, 1962 a penalty to the tune of Rs.2,00,000/- has been imposed upon Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned 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. To support his contention, he relies on the following decisions : (i) Ajit Bhosle reported in 2020 (374) E.L.T. 814 (Tri. - Kolkata); (ii) Om Sai Trading reported in 2020 (372) E.L.T. 542 (Pat.). He submitted that though the term reasonable belief has been quoted in Panchnama but the same remains absent from the Seizure List in the present case. Apt to state herein that the Circular 1/2017-Cus dated 08.02.2017 clearly states that whenever goods are being seized, in addition to panchnama, the proper officer must also pass an appropriate order (Seizure memo)/Orders/etc. clearly mentioning the reasons to believe that the goods are liable for confiscation. However in this particular case no such reasonable belief has been formed while seizing the goods as such, the said seizure becomes vitiated in nature. Moreso there is a clear violation of the Circular in the present case and that the provisions as laid down has not been adhered by the seizing officers. 3. He f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. Another vital point in question is that the initial burden as cast upon by Section 123 of the Customs Act, 1962 undisputedly shifts upon the department. 5. He further submitted that the appellant has submitted proper documents, which are purchase invoice (Confirmed by the seller), bagged with melting invoice of (Confirmed by M/s Gopinath Bambaiwale) per contra department could not bring in on record any evidence pertaining to the alleged smuggled nature of the seized good. To support his contention, he relies on the decision of this Tribunal in the cases of Madhukar Sonaba Bhagat reported in 2019(368) E.L.T. 990 (Tri.- Kolkata) and Premax Logistics vs CC, Chennai vide Order dated 30.03.2017 in Appeal No.C/41565/2016. 6. He further submitted that the Department has simply refuted the documents on the basis of mere assumption and presumption and without any basis. The Department has on the basis of presumption and assumption basis, has absolutely confiscated the gold without any documentary and concrete evidence and held that the gold is of foreign origin and it has been illegally imported into India and as such the confiscation of seized goods is absolutely bad in the eyes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed gold can never be ascertained as of foreign origin. To support his contention, he relies on the decision of this Tribunal in the case of Dinesh Verma reported in 2005 (192) ELT 910 (Tri-Del). 11. In a nutshell, it is submitted by the ld.Counsel for the appellants as follows:- i. Shri Ashish Kumar Agarwal has given the seized gold to Shri Rajendra Mishra for the purpose of making of ornaments, however, the exchange rate being high, gold was taken back from Kolkata to Varanasi, whilst the same is seized (Reflected in statement recorded under section 108 of the Customs Act, 1962). ii. The possession details of the gold are well reflected in the book of accounts of M/s Ashish Ornaments, which remains unrefuted. iii. The allegation of smuggled nature of the seized gold comes only from the statement of Shri Rajendra Mishra, however, such statement is not corroborated by any shred of evidence. iv. The department in the fourth stage has failed to bring any evidence to substantiate the allegation of smuggling, however, has simply refuted the documents, which is meritless to be considered in absence of any corroboration and also when there is absence of reasonable believe, in terms of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not legal. Moreover, in Panchnama also, the gold has been seized, but nowhere it is mentioned that the proper officer is having with reasonable belief that the gold in question is liable to confiscation. In that circumstances, the gold cannot be seized. 7. I further take note of the fact that it is not a case of seizure of gold at Port, Airport or International Border having any inscription/marking or embossment to believe that it is of foreign made and the purity is also less than 99.9%. In that circumstances, the benefit of doubt goes in favour of the appellants and the gold in question cannot he seized. 8. I have also gone through the case laws relied upon by the ld.A.R. for the Revenue, the same are not applicable to the facts of these cases as in those cases, nowhere it is found that the seizure memo does not have the reasonable belief to hold that the gold in question is liable for confiscation. 9. Further, I find that in the case of Ajit Bhosle (supra), this Tribunal has examined this issue by holding that in case where seizure memo is based on a seizure of gold, which is covered under Section 123 of the Customs Act,1962, which caused an obligation on the owner to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
