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TMI Blog2024 (11) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the provisions of the Customs Act, 1962. The appellant Shri Ashish Kumar Agarwal had claimed in his statement dated 07.06.2019 that the seized gold belonged to M/s Ashish Ornaments House which was bought from M/s Riya Jewellers Pvt. Ltd., Kolkata vide Invoice No. GST/R/00040/19-20 dated 19.04.2019 and M/s Anjali Pvt. Ltd., Kolkata vide Invoice No. AGPL/0812/18-19 dated 19.11.2018 and AGPL/0818/18-19 dated 20.11.2018. It is also pertinent to mention herein that photocopy of the said bills were also submitted, which were cross-verified and wherein it was found to be true, from the said respective sellers. It is also an admitted fact that the gold so purchased from the sellers were actually melted from M/s Gopinath Bambaiwale and the said fact of melting gold was collaborated from the statement of M/s Gopinath Bambaiwale on 23.07.2019 by the DRI. 2.1 On 06.11.2019 a show cause notice was issued upon the present appellant wherein the allegations were based upon the statement of the co-noticee shri 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Seizure List itself. Reasonable belief is the only safeguard available against any indiscriminate seizure against any person and absence thereof makes the entire seizure proceedings bad in the eyes of law. From a bare perusal of the Seizure List, it could be perceived that the seizure is made without any reasonable belief. Section 110 of the Customs Act, 1962 clearly envisages that a proper officer of customs having reasonable belief that any goods is liable to be confiscated, he may seize such goods. In the present case, there has been no reasonable belief on the part of the officer concerned while seizing the goods. Hence, it clearly depicts that the seizure so made is illegal and hence, the goods are liable to be released and in corollary thereof, confiscation U/s.111 of the Customs Act, 1962 is not at all warranted. Thus, when preliminary seizure of goods is in dispute the SCN proceedings becomes vitiated in nature thereby making the impugned order liable to be quashed. Reasonable belief of the officer concerned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 123 of the Customs Act, 1962 which clearly stipulates that ".....................where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods............................." Therefore, a cursory glance of the said provision makes presence of reasonable belief mandatory for invocation of the said provision. In the present case as no reasonable belief is formed the burden lies on the department to prove that seized goods is smuggled. However, no shred of evidence has been put forth by Revenue to substantiate any of such allegations as framed in the SCN. As per the provisions of the Act it is well established that the officer seizing it apparently forms the reasonable belief. When there is clear absence of reasonable belief, the initial burden in terms of Section 123 of the CA, '62 automatically shifts upon the Department. As such, two poignant points come into the present scenario where the reasonable belief formed by the seizing officer is disputed and the same remains absent while conducting the seizure of goods. Another vital point in question is that the initial burden as cast upon by Section 123 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision in the case of Bihari Lal reported in 2005 (192) ELT 547. 9. It is his further contention that the onus of importation in no way lies upon the appellant as he is simply a purchaser who had legitimately purchased the seized gold by legit means from the respective sellers and his onus has been verily discharged on the very moment he produced documents related to the subject gold which hasn't been negated till date. The fact that the invoices were cross verified by the investigating authority with the respective sellers who had raised them strongly establishes the fact the gold had been licitly and indigenously procured. 10. He further submitted that it also goes beyond from the nature and character of the so-seized gold. Since, it doesn't carry any foreign marking the gold is indigenously procured. Also, that the purity percentage i.e., 99.6% is much below 99.9% hence the seized gold is not of foreign origin and is neither smuggled. It is also pertinent herein to mention that the Ld. Adjudicating Authority failed to consider that solely based upon the statement the nature of the seized gold can never be ascertained as of foreign origin. To support his contention, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, who stated that the gold does not belong to him and the same belong to M/s Ashish Ornaments House. Shri Ashish Kumar Agarwal and Shri Pradumanji Agarwal, the owner of M/s Ashish Ornaments House, are also before me. 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. In that circumstances, I 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. Moreover, in Panchnama also, the gold has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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