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TMI Blog2025 (2) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case are same for all the three appellants, the appeals are taken up for disposal by way of this common order. 2. Brief facts of the case are that the Officers of Customs has seized 18 and 22 carat gold jewellery such as Bracelet, Short chains, short chain (broken), Long Chain, Mangalasuthra chain in Train No. 17651 Kachiguda Express at Puttur Railway Station. Though there is no power for seizure, since the seized gold jewellery does not bear any foreign marking, still the officers of Customs has effected the seizure. Thereafter the Appellants were asked as to why the seized gold jewellery should not be confiscated and as to why penalty should not be imposed. 3. The appellants vide reply dated 14.10.2022 have given their reply. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities below are absolutely unsustainable and wrong. Therefore, he prays to set aside the same. 5. On the other hand, Learned AR argued that there is sufficient evidence to prove that the gold seized were smuggled gold and rightfully confiscated and imposed penalties. The onus to prove that it was not smuggled was on them in view of provisions of Section 123 of Customs Act, 1962 which they have failed to discharge. 6. Heard Learned Counsel for the appellant Shri T. Chezhiyan and Learned AR Shri Sandeep Kumar Payal for the Department and perused the records. 7. Statements recorded by Customs Officer under Section 108 of the Customs Act which is thus as mentioned in Order-in-Appeal in para 2.3 to 2.9: 2.3 A statement was recorded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Street, Sowkarpet, Chennai 2 - Long Chains 2 - Long Chains Total:- 125.932 gms 2.5 In view of the retraction vide letter dated 23.05.2022 submitted by the Appellant-1 statement dated 14.06.2022 was recorded under Section 108 of Customs Act 1962; wherein he stated; that he was tensed at the time of seizure; that the entire gold recovered from him on 05.04.2022 was purchased from M/s Jain Jewellers, Chennai; that he is submitting invoice's and bank transactions as proof for the gold jewellery seized on 05.04.2022; 2.6 On submission of retraction vide letter dated 23.05.2022 by the Appellant- 1, a statement dated 14.06.2022 of Mr. S Dinesh, Proprietor M/s Jain Jewellers, Chennai was recorded under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansactions and submitting invoice no. 01 dtd 05.04.2022 and Bank transaction details as proof against the purchase he made. 2.9 A statement dated 05.08.2022 was recorded from Mr. Mukesh Kumar, Prop:-M/s Shree Jewellers, Chennai, under Section 108 of Customs Act 1962 wherein he stated; that he doesn't why the Appellant-1 stated that he has given 25 grams of 24 carat gold to him; that the Appellant-1 has not purchased any gold jewellery from him; that he has not done any financial transaction with the Appellant-1. 8. The seized gold are gold jewellery and Appellant No. 1 Shri Munagapadi Raghavendra Kumar stated in his statement that he is having a small shop and is working as a gold worker since 10 years and purchased gold from M/s Jain Jewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and 23.05.2022. Findings of Adjudicating Authority as well as Commissioner (Appeals) are based on assumptions and presumptions. M/s Jain Jewellers accepted to receive payment through RTGS. In business, payment as such in the statement are natural transaction. 12. The word "smuggling" is defined under Section 2(39) as: "smuggling" , in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113; Section 111: Confiscation of improperly imported goods, etc -- The following goods brought from a place outside India shall be liable to confiscation ---- xxx xxx xxx xxx 13. In these cases, no any facts relating to Section 113 of the Customs Act. Accordingly, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants relied on the decision of the Coordinate Bench of this Tribunal Shreyas Agarwal and Other Vs Commissioner of Customs (Prev) in which it is held as follows in para no. 60: 60. The goods must be smuggled goods. The word 'smuggled' means that the goods were of foreign origin and they had been imported from abroad. Only then does the presumption under Section 123 arise. The goods themselves did not suggest that the petitioner was an old smuggler or a dealer in smuggled goods. If there was such information with the customs, they ought to have disclosed it. The goods themselves did not suggest any illicit importation. Nor was there any inscription on the goods which could be the basis of the reasonable belief that the goods were of for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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