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TMI Blog2025 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... y and documents which were produced to prove also un-related to seized gold. The appellants in these appeals failed to prove that the seized gold is not smuggled. Impugned order based on facts and law and proper appreciation of evidence. No any interference required in the impugned order. Conclusion - i) The appellants failed to prove the gold was not smuggled and found no procedural violations warranting interference with the original orders. ii) Confiscation and penalties upheld. Appeal dismissed. - HON BLE Mr. ANGAD PRASAD , MEMBER ( JUDICIAL ) Shri M V S Prasad , Advocate for the Appellant Shri A Rangadham , Authorised Representative for the Respondent ORDER [ ORDER PER : ANGAD PRASAD ] These two appeals are arising out of the same set of facts and evidence and a common show cause notice issued by the Additional Director of Directorate of Revenue Intelligence, Hyderabad vide F.No. DRI/HZU/NSRU/48-ENQ-03(INT-3)/2018 dated 22.02.2019 vide which the notices were issued to Shri Vemuri Ramaiah, Shri Sudhakar Rao and Shri N.V. Subrahmanyam. The Appeal No. C/30403/2022 has been filed by Shri N.V. Subrahmanyam and Appeal No. C/30402/2022 has been filed by Shri Vemuru Sandeep Son, Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 123 of Customs Act 1962 which they have failed to discharge. He further reiterated that power to allow redemption under Section 125 is a discretionary power, which is exercised by the Adjudicating Authority based on the facts and circumstances of the case and in the present case it has been rightfully denied to the appellants. Further, the penalty has also seen correctly imposed. 6. Heard Learned Counsel for the appellant and Learned AR for the Respondent and perused the records. 7. The Officers of DRI seized the gold of foreign origin i.e. 14 pieces (including small pieces) of gold totally weighing 1627.19 grams valued at Rs. 49,15,383/- from one person namely Sri Vemuru Ramu alias Ramaiah at RTC Bus stand, Kavali, Nellore District on 31.08.2018 as he is not in possession of any documents showing the licit import of said goods and on the reasonable belief that they are liable for confiscation under the provisions of Customs Act, 1962. Further, the DRI Officers detained 15 pieces of gold bars totally weighing 1500 grams totally valued at Rs. 46,48,320/- by issuing detention memo under the provisions of Customs Act, 1962 as the officers of DRI proposed to ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962 each against Shri Vemuru Ramaiah, Shri Vemuru Sudhakar Rao and Shri N.V. Subhramanyam with respect of confiscation of gold of 1027.19 gms. Also imposed a penalty of Rs. 4,50,000/- each against Shri Vemuru Ramaiah and Shri Vemuru Sudhakar Rao in respect of confiscatin of gold of 600.00 gms. 9. After appreciation of evidence produced by the appellant, Lower Authorities concluded that the invoice bearing no. 446 dated 30.08.2018 produced by Shri V. Sudhakar Rao is apparently not relevant to the seized gold bars under seizure and apparently nothing but an afterthought with a view to cover up the lapse. It is obvious that other than said invoice, no other evidence was produced showing the receipt of importation of goods under seizure either by Shri B. Ramaiah or Shri V. Sudhakar Rao and held that Shri B. Ramaiah and Shri V. Sudhakar Rao have failed to discharge the burden of proof that the gold of foreign origin being 600 gms totally valued at Rs. 18,12,468/- is procured illicitly. 10. In appeal no. C/30402/2022 filed by Shri Vemuru Sandeep Son, legal heir of late Shri Vemuru Sudhakar Rao, Order-in-Appeal No.VJD-CUSTM - 000-APP-004-22-23 dated 22.06.2022 due to death of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court] held as follows: it is explicit that, when any goods to which the Section applies are seized under the Act under the reasonable belief that they were smuggled goods, the burden of proof as to they were not smuggled goods, shall be on the person from whose possession the goods were seized ..A reading of Section 123 also require only a reasonable belief as far as gold is concerned, that it was smuggled. The gold was recovered from the possession of the two individuals intercepted by the DRI, who were not able to give a satisfactory explanation to upset the reasonable belief entertained by the DRI officials who recovered huge quantity of unmarked gold from the persons intercepted. In fact the statements made by the intercepted individuals further fortified the belief entertained by the officials. The statement of the carriers of the gold under Section 108 of the Act, can be safely relied upon by the Department to proceed against them. 15. Further, Learned Counsel for the appellants relies on another Coordinate Bench decision in the case of Mrudul Agarwal Vs Commissioner of Customs, Lucknow [2018 (362) ELT 847 (Tri-All)]. In this case, Co-ordinate Bench held that appellant genui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove also un-related to seized gold. 20. Learned Counsel for the appellants stated that Lower Authorities refused to give an opportunity for cross examination and therefore Lower Authorities violated the principles of natural justice. In this regard, in Orderin- Original, it is mentioned that The noticees gleefully accepted the outcome of investigation when it comes to the aspect of releasing of the gold under detained panchanma dated 30/31.08.2018. This clearly shows the opportunistic attitude and culpable state of mind of the noticees. Once the contents of the panchanama regarding detention is accepted and received the detained gold on its release on 11.02.2019 as a result of investigation, raising contentions that panchas are not present; that the panchanama was signed due to pressure after receiving the show cause notice are not tenable and acceptable. Such demeanor is nothing but a desperate attempt to vitiate the proceedings of the adjudication . 21. In this regard, the Department produced Hon ble Supreme Court decision in the case of Surjeet Singh Chhabra Vs Union of India [1997 (89) ELT 646 (SC)]. In this case, Hon ble Supreme Court held that cross examination of witne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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