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TMI Blog2025 (1) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in the alleged act of smuggling/illegal importation. The impugned order has been passed by the lower authorities on the basis of presumptions and assumptions. No evidence has been brought on record to substantiate the allegation that the said gold is of foreign origin and illegally imported into India. >Existence of reasonable belief or not - HELD THAT:- Section 123 of the Customs Act clearly stipulates that a 'reasonable belief' that the gold is of smuggled in nature is mandatory for invocation of the said provision. However, in the present case no reasonable belief has been formed by the officers that the gold is of smuggled in nature and hence I hold that provisions of Section 123 are not applicable in this case and the burden lies on the department to prove that seized gold is of smuggled in nature - no evidence has been brought on record by the Revenue to substantiate the allegation that the gold is of foreign origin and smuggled in nature. >Principles of natural justice - HELD THAT:- It is observed that there was no Panchanama drawn at the time of seizure of the gold. The appellants have written to the Authorities on multiple times for release of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants submit that there was no panchanama drawn at the time of seizure of the gold. Thereafter, they have written to the Authorities on multiple occasions for release of the gold seized and supplying of Relied upon documents (RUDs), but there was no response from the authorities. On 06.11.2020, the Authorities had issued a letter wherein they had claimed that the RUDs were issued to the Appellant, although no document was enclosed with the said letter dated 06.11.2020. >4. Thereafter, the Ld. Additional Commissioner of Customs (Preventive), Shillong issued order dated 26.04.2021, wherein he has ordered absolute confiscation of the seized gold and imposed penalty to the tune of Rs. 1,75,000/-under Section 112 (b) of the Customs Act, 1962. On appeal, the Ld. Commissioner (Appeals) has passed the impugned orders dated 08.08.2022 and 10.08.2022, rejecting their Appeals. >5. The Appellants submit that the Ld. Adjudicating Authority has considered that the seized gold were of foreign origin merely on the basis of presumption and assumption. The appellants submits that they have produced all the documents in relation to legal purchase of the seized gold from indigenous sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 990 (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 prices 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" >10. The Appellant-2 also submits that he runs a jewellery business in the name and style of M/s. Rahul Jewellers. The said Firm has purchased gold weighing 174.900 gms and 274. 450 gms respectively, from M/S DCM & Co, under Invoice No 56 and 58. The appellant-2 further submits that the investigating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mandatory for invocation of the said provision. However, in the present case no reasonable belief has been formed by the officers that the gold is of smuggled in nature and hence I hold that provisions of Section 123 are not applicable in this case and the burden lies on the department to prove that seized gold is of smuggled in nature. However, I find that no evidence has been brought on record by the Revenue to substantiate the allegation that the gold is of foreign origin and smuggled in nature. I observe that the seizure of the gold without following the 'reasonable belief' that the gold is of smuggled in nature, is not sustainable. >13.2. I observe that the appellant-2 viz. Shri Prahlad Kumar Das runs a jewellery business in the name and style of M/S Rahul Jewellers. The said Firm has purchased gold weighing 174.900 gms and 274.450 gms respectively, from M/S DCM & Co, under Invoice No 56 and 58. The appellant-2 has produced these documents evidencing legal purchase of the gold from M/s. DCM&Co. The appellants claimed that the investigating officers have not given any opportunity to them to produce the relevant documents for the licit purchase of the gold. I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Act are not applicable to the facts of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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