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TMI Blog2025 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... 924/ (Rupees one crore twenty six lakhs eighty three thousand nine hundred and twenty four only) should not be confiscated under Section 111 of the Customs Act,1962 (2) Why penalty should not be imposed upon him under section 112(b)((1) of the Act, ibid. (3) Why penal action should not be under taken under section 135 of th Customs Act, 1962. 3. During the Adjudication process, the appellant denied any contravention on his part and sought cross-examination of the GRPF officers who had initially seized the gold. This request was denied and the Adjudication order was passed confiscating the seized gold absolutely and also imposing on the appellant. Being aggrieved by the Order in Original, the appellant is before the Tribunal. 4. The Ld. Consultant appearing on behalf of the appellant, reiterates the detailed arguments adduced in the Grounds of Appeal. He further specifically takes the following arguments: 4.1 The gold in question did not have foreign marking. The Dept. got the Assay Certificate from the Assam Hallmarking Centre confirmed that 26 recovered gold bars were having fineness ranging from 995.7 to 998.9. This itself shows that they do not have the purity of 99.9 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Given the absence of foreign markings, the lack of proximity to an international border, and the failure to establish smuggling through independent evidence. Gold seized by the Railway Police was handed over to the Customs Department in a sealed envelope. The record does not indicate that the Customs authorities opened the envelope or conducted an independent verification of the contents to derive a reasonable belief for seizure. It thus, appears that the seizing officers have acted on mere suspicion or conjecture without based on objective, tangible material. 4.10 There is no whisper in the entire show cause notice about the origin of the gold bars seized from the appellant. It is not mentioned as to where, how and by whom the said gold was smuggled into India. Therefore, the smuggled nature of the impugned gold is far from established. 4.11 Though Chemical examiners report indicated the purity of the Gold, it did not conclude that the impugned gold was of foreign origin. 4.12 The case law of Rajendra Kumar Damani cited by the Revenue underscores important principles regarding the voluntariness of statements, burden of proof, and evidentiary standards in smuggling cases, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in "unclaimed seizures", where the department issues a public notice inviting the rightful owner to step forward. This is not the case here. 5. In view of the above submissions, the Ld. Consultant prays that the impugned Order may be set aside and consequential relief may be granted to the appellant. 6. The Ld. AR appearing on behalf of the department made the following submissions: 6.1 The investigation revealed that Debnath was in possession of the gold bars, which were concealed in a pouch around his waist. He admitted receiving them from a Naga person named Indra in Hojai and was instructed to transport them to Bandel. He had previously smuggled gold from Imphal to Dimapur for a payment of Rs.5,000. Despite later retracting his confession, his statements under Section 108 of the Customs Act were deemed valid evidence. 6.2 The Assay Certificate from the Assam Hallmarking Centre confirmed that 26 recovered gold bars were having fineness ranging from 995.7 to 998.9. Under Section 123 of the Customs Act, 1962, the burden of proving that the gold was not smuggled lay with the accused, Shri Sanjoy Debnath, who failed to do so. The lesser purity of the seized gold does not necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been found. 12. As seen above from the Seizure Report also, nothing emerges to the effect that the seized gold had any Foreign Markings. In such a case the 'reasonable belief' that the gold is of foreign make is liable to be doubted, since the Assay Test Report dated 5th April 2017 as well as the Seizure Report do not speak anything about the Foreign Marking and the purity is not that of International Standard of gold bars. 13. Now coming to the appellant's claim as the owner of the gold, this can be rejected by the Revenue, only if the Revenue proves the 'Reasonable belief' by way of proper evidence. So long it is not proved to be 'smuggled gold of foreign origin', the Revenue does not have the authority to confiscate the same. As has been seen from the Seizure Memo as well as the Show Cause Notice issue, the appellant has been mentioned as 'Owner'. At this juncture, it would be useful to go through the statutory provision of Section 123, which is reproduced below: 123. Burden of proof in certain cases. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Inventory Seizure Report has been prepared by the Customs Officials, stating that they have received the said goods from GRPS and one Witness has signed this Report. Therefore, if the appellant wanted to defend his properly, he had the right to know all these facts by cross-examining the GRPS officials, the opportunity for which has been denied by the Adjudicating authority. This is clear violation of principles of natural justice. 17. Based on my above observations at Para 10 to 14, it is more or less clear that the gold is not of foreign origin, it also has lesser purity / fineness than the standard foreign gold bar. The ownership issue favours the appellant on two counts referred to above. However, I feel that the cross-examination of the GRPS who are the first persons to seize the goods, would be crucial to throw more light on the entire transaction. Hence, I take the view that the opportunity to cross-examine these officials should be given to the appellant. 18. The result of the cross-examination, along with the above detailed observations of the Tribunal are to be taken into consideration by the Adjudicating authority while passing his considered Order. 19. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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