9911796707
TMI Blog2024 (12) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... son of suspect if proper officer exercising jurisdiction under Section 110 of the Customs Act, 1962 - the appellant has produced certain documents in support of his claim to discharge its onus in Section 123 of the Customs Act, 1962 which made the goods subject to release. Confiscation of gold - HELD THAT:- In this case the gold being importable subject to conditions as imposed and appellant has already produced the mode of procurement of the said goods. Therefore, the goods are not liable for confiscation under Section 111(d) of the Act. Further, the statements made by the appellant during the course of investigation has not been examined. In terms of Section 138 (B) of the Customs Act, 1962, no evidence have been adduced to effect to prove that goods in question recovered from the appellant is the alleged act of smuggling. Conclusion - The absence of reasonable belief clearly makes the instant seizure proceedings vitiated in nature which in turn makes the entire SCN proceedings and its consequent adjudication thereto bad in the eyes of law. The impugned order qua absolute confiscation of gold in question is not sustainable in the eyes of law - Appeal allowed. - SHRI ASHOK JINDA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of identification. Details of the recovered goods are as follows:- (1) 01 (one) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as DFI FINE GOLD 100 g 99.5 of weight 100.01 grams, (2) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as DFI FINE GOLD 100g 99.5 of weight 100.03 grams, (3) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as DFI FINE GOLD 100g 99.5 of weight 100.00 grams, (4) 01 (one) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as Valcambi Suisse 100g gold 995.0 ESSAYEUR FOUNDER OF WEIGHT 100.01 grams, (5) 01 (one) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER of weight 100.01 grams, (6) 01(One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER with serial number AA419935 of weight 100.00 grams, (7) 01 (One) piece of yellow metal biscuit believed to be gold of foreign origin having inscription as SUISSE 100g 99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mobile phone, considered to be relevant by the officers for further investigation of the case, under Section 110 of the said Act vide Seizure Case No.05/IMP/CL/GOLD/P I/CCP/WB/2016-17 dated 24/10/2016 liable to confiscation under Section 111(b), 111(d) of the said Act. A copy of inventory was handed over to the said Noticee No.1. 5. Voluntary statement of Shri Prasanta Sarkar was recovered under Section 108 of the Customs Act, 1962 before the Superintendent of Customs, P I Branch, CC(P), W.B., Kolkata on 24/10/2016. 6. In his voluntary statement dated 24/10/2016 Shri Prasanta Sarkar had admitted that he is the owner of the jewellery shop named M/s. Gouri Gold House located at K.B. Basu Road, Barasat since 08 years; that his family consists of his father aged 65 years, mother aged 61 years, wife aged 32 years, daughter aged one and half years and brother aged 33 years; his shop is in partnership with his younger brother Shri Simul Sarkar; he purchases gold with valid documents from M/.s VICKY JEWELLERY WORKS PVT.LTD. 12 Syakra Para Lane, Bowbazar M/s. Paul Gold House and Sons, 12/1 Syakra Para Lane, Bowbazar; that he had also purchased the gold biscuits without any documents form th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son and absence thereof makes the entire seizure proceedings bad in the eyes of law. The absence of reasonable belief clearly makes the instant seizure proceedings vitiated in nature which in turn makes the entire SCN proceedings and its consequent adjudication thereto bad in the eyes of law. Therefore there arises no question for sustenance of the impugned Order directing penalty as well as confiscation of the seized goods. Hence, the Impugned Order is ipso facto illegal and liable to be quashed. The case of Ajit Bhosle reported in 2020 (374) E.L.T. 814 (Tri. - Kolkata) ; Seizure - Gold seized on suspicion that it was smuggled - Seizure of gold in cut pieces having no marking and of different purity from melting house - Submission of documentary evidence in support of lawful possession by claimant - Not controverted in investigation - Claimant duly discharging his burden of proof - No evidence documentary or otherwise adduced by Department to show that gold illegally imported - Gold freely imported in country and abundantly available in market - Seized gold cannot be held to be smuggled - Doubt and suspicion can invite investigation but not sufficient for penal action - Sections 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 (Tri.- Kolkata) whereof it has been held that Gold of foreign origin- Burden of proof-Reasonable belief, absence of-Gold seized at accused s shop in the city and not while being smuggled either at Port or at Airport-Seizure based on information received and for non-availability of documents pertaining to gold, in shop at time of investigation-Nothing on record to suggest that pieces seized having any foreign markings-Also, documents produced to show how accused came in possession of gold and documents, on investigation, found to be genuine-Further, Commissioner refrained from imposing any penalty under Section 114AA of Customs Act, 1962- No reasonable belief for seizure of gold and Currency hence confiscation thereof and imposition of penalty under Section 112 , Customs Act, 1962, not sustainable-Impugned order set aside-Section 111 and 123 of Customs Act,1962 . Reliance is also placed upon the case law Raj Kumar Jaiswal reported in 2006 (204) E.L.T. 561 (Cal) The Hon ble Bench may be pleased enough to consider that though some gold carries foreign inscriptions however, the same does not specifically mean that the same has been illegally imported specially when the case is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 which deals with situation of intentionally making or using declaration statement or documents which is false or incorrect in the transaction of any business for the purpose of Customs Act. The said Section is intended to penalize situation where there are paper transaction without any actual import or export of goods. In the present case, the department has no case that the transaction was paper transaction only and no goods were imported in the instant case and therefore, penalty imposed under Section 114AA of the Customs Act, 62 upon the appellants is not at all warranted It is essential to be stated that the present appellants are in no way engaged illegal importation of any contraband goods. Moreover, there is no evidence in the present case so as to suggest that they have omitted or committed any act which renders them liable to be penalized in terms of Section 114AA of the CA, 62. It is ought to be appreciated that there is practically no ingredients available with the investigating authorities so as to penalize the appellants under Section 114 AA of the CA, 62. There is no case that the present appellants have done any act which is specified under Section 114AA of the C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in Final Order dated 03.11.2023 in its true spirit and thus, has passed Order dated 15.12.2023 beyond the scope of the direction provided in Order dated 03.11.2023 and accordingly, the same is liable to be set aside and quashed. 6. On the other hand Ld. Authorized Representative supported the impugned order and submits that as goods in question are notified goods under Section 123 of the Customs Act, 1962 and owners of procurement of the said goods through elicit manner cast upon the appellants failing which goods shall become the restricted goods and same is liable to be absolute confiscation as held by the Hon ble Delhi High Court in the case of Commissioner of Customs (Export) Vs. Ashwini Kumar Alias Amanullah in Custom Appeal No. CUSAA 37/2021 CM APPL. 34847/2023. 7. He also relied on the decision of Sunny Kakkar Vs. Principal Commissioner of Customs vide Final Order No. 50-108/2023 dated 06.02.2023 and Kashi Kumar Aggarwal Vs. Commissioner of Customs (Preventive) vide Final Order No. 50387/2023 dated 23.03.2023. Rameshbhai Lakhabhai Patel vide Final Order No. A/10925-10926/2022 dated 05.08.2022 and Commissioner of Customs, Patna Vs. Amar Kishore Prasad, 2013 (298) ELT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r confiscation of the goods, the said provisions are also applicable as provisions being imposed by any Act or any other law for the time being in force of any goods which is imported or attempted to be imported. 16. In this case the gold being importable subject to conditions as imposed and appellant has already produced the mode of procurement of the said goods. Therefore, the goods are not liable for confiscation under Section 111(d) of the Act. Further, the statements made by the appellant during the course of investigation has not been examined. In terms of Section 138 (B) of the Customs Act, 1962, no evidence have been adduced to effect to prove that goods in question recovered from the appellant is the alleged act of smuggling. 17. Further the Ld. Authorized Representative relied on the various case law cited herein above which does not through light on the issue of reasonable belief for confiscation of the goods in question. Therefore, the said decisions are of no help. 18. Further, in this case the Revenue has failed to give the findings in the seizure memo of reasonable belief for confiscation of the goods in question and moreover the provision of Section 111(b) (d) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
