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TMI Blog2025 (3) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... ed gold but also for extension of the Advance Authorization and the Delhi High Court, in its judgment [2024 (1) TMI 538 - DELHI HIGH COURT], made it clear that the appellant would be at liberty to apply for extension/re-validation of the Advance Authorization License after the show cause notice dated 11.08.2021 was adjudicated. The Delhi High Court also made it clear that as and when such application is filed, the Directorate General of Foreign Trade shall consider the same in accordance with law keeping in mind the peculiar facts of the case as the appellant was prevented from exporting the jewellery because the gold had been seized. The finding recorded by the Commissioner that the premises did not have a fully mechanized machine for manufacture of jewellery is not based on any evidence. The panchanama dated 13/14.08.2020 clearly mentions that two machines for manufacture of jewellery were available on the fifth floor. The Commissioner assumed that these two machines were not fully mechanized. It was imperative for the Commissioner to have obtained a report about the two machines found on the fifth floor before recording a finding whether they were mechanized or not. Conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted a search at the premises of the appellant on 13.08.2020 on the allegation of diversion of duty free gold imported by the appellant. The search continued till 14.08.2020 at the declared premises of the appellant as also other premises belonging to the Director of the appellant as well as the premises of other related person. 4. According to the appellant, 53kgs of gold that was imported by the appellant through the two Bills of Entry dated 13.08.2020 were cleared by the customs in the late hours of 13.08.2020 and thereafter the same were kept by the Principal Officer of the appellant after clearance and could not be brought inside the declared premises because of the search that was going on. After the search was over, the said gold bars were brought into the declared premises. 5. The appellant contends that the Director of the appellant appeared in the office of the DRI on being called on 17.08.2020 and on the basis of the disclosure made by him that said 53kg gold was kept in a chest 40/4914, Regarpura, Karol Bagh, New Delhi, search proceedings were conducted by DRI Officers of the said premises on 17.08.2020 and 53kgs of gold was found in the chest. 6. The said 53kgs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of facts. ***** ***** 51. The Gold, in relation to which the petitioner is seeking re-validation/extension of the period of export is lying seized with the respondents pending adjudication of the Show Cause Notice dated 11.08.2021. The petitioner would be at liberty to apply for any such extension/revalidation of the Advance Authorisation licence after the adjudication of the Show Cause Notice dated 11.08.2021. As and when any such application is filed, the DGFT shall consider the same in accordance with law, keeping in mind the peculiar facts of the case, as the petitioner is contesting Respondent no. 2's power to seize the gold and has been effectively prevented from exporting the same. The DGFT shall also consider the petitioner's request for waiver or relaxation of the composition fee. 52. The petitioner is also at liberty to file an application for provisional release of gold under Section 110(A) of the Customs Act. 53. In view of the above, this Court does not consider it apposite to pass any direction for quashing of the Seizure Order dated 28.12.2020, whereby the gold was seized. The issue whether the gold which had been cleared by the Proper Officer, and impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Scheme by three firms including M/s. Shree Gold art Pvt. Ltd. (SGAPL). These firms were running their operations from two premises namely 40/4910 & 40/4914, Regharpura Karol Bagh, New Delhi. Shri Manindra Samanta and his wife are directors in SGAPL. (ii) During search conducted on 13.08.2020, Shri Manindra Samanta submitted the stock position of 344.121 kg gold imported under Advance authorization by SGAPL as Work In Progress (WIP) & issued to various persons as per "issue vouchers". 53 kgs gold was not found during search of the above said premises on 13.08.2020 and again on 14.08.2020. Even the search of premises 59/25, new Rohtak Road on 14.08.2020 did not yield any gold. (iii) The issue vouchers were found to be issued in the name of relatives of Shri Manindra Samanta or employees such as sweepers or caretakers of the premises. This has been admitted by Shri Manindra Samanta and Shri Alok Pradhan in their statement on 18.08.2020 and 22.10.2020 respectively. The address shown in these vouchers were also the same as of the firm as mentioned above where on conducting search on 13.08.2020 and 14.08.2020, no gold was found. (iv) Shri Manindra Samanta has admitted in his stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant for provisional release of the gold. Learned counsel submitted that 53kgs of gold imported through two Bills of Entry, both dated 13.08.2020, were cleared in the late hours of 13.08.2020 and could not be taken to the premises on 13.08.2020 because of the search that was being conducted by the Officers of DRI and this search continued upto 14.08.2020. Learned counsel also pointed out that when search of the premises was carried out by the Officers of DRI on 17.08.2020, 53kgs of gold was found in the chest and this fact was also noted by the Delhi High Court in the judgment dated 22.12.2023 passed in the Writ Petition No. 1166 of 2021 filed by the appellant. Learned counsel also pointed out that during the search it was noticed that there was a machine in the premises but the Commissioner observed that the Officers did not find any fully mechanized facility for manufacturing of jewellery. Learned counsel submitted that under the Advance Authorization the appellant had to manufacture jewellery from the gold within a period of 120 days from the date of clearance of the import but as the gold was seized within three days of the import, the appellant was prevented from manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch was over that the said gold bars were brought into the declared premises. The appellant, therefore, contends that when the search was again conducted on 17.08.2020, 53kgs of gold were found in a chest. This 53kgs of gold imported by the appellant were placed under seizure by the Officers of DRI through a seizure memo dated 22.12.2020 on the allegation that the same was kept outside the declared premises on 13.08.2020 with intention to divert the same. 18. The Commissioner, by order dated 01.05.2024, rejected the application filed by the appellant for provisional release of gold. The Commissioner observed that since 53kgs of gold was not found in the premises on 13.08.2020 and 14.08.2020 when the search was carried out, it appeared that the appellant intended to bypass the import policy and save duty on the import of gold. The Commissioner also noted that under the Advanced Authorization Scheme manufacture of gold jewellery/articles has to be undertaken by a fully mechanized process, but during the search of premises fully mechanized facility for manufacture of jewellery/article was not found by the Officers of DRI. 19. The reason why gold that was imported and cleared in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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