TaxTMI 
TaxTMI 
2013 (11) TMI 1231
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the possession of the said currency, the gold sovereigns were seized by the officers on the reasonable belief that these were smuggled and liable to confiscation under Customs Act, 1962 and also for contravention of the provisions of Gold Control Act, 1968. The Indian currency of Rs.20,000/- recovered from his possession was also seized on the reasonable belief that the same were sale proceeds of smuggled contrabands. 2.2 In his statement dt.03.06.1987, furnished before the Customs Officers, Shri Mukesh Shah had disclosed that 43 pcs. of gold sovereigns were of foreign origin of various descriptions and 02pcs. of gold sovereign in the form of US dollars. He stated that these were procured/acquired by him from different brokers/customers in Sonapatty Market, Kolkata. Further, he has stated that the names and addresses of these brokers from whom he had purchased/obtained these sovereigns were not known to him. He had informed that by profession he is aroaming broker and used to earn his livelihood from selling the gold& silver bullions in the sonapatty market. On the Indian currency of Rs.20,000/- recovered from his possession, he had stated that he obtained those from one M/s. J....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... preferred an appeal before the Ld. Commissioner of Customs (Appeals).The Ld. Commissioner(Appeals) even though upheld the confiscation of 45 gold sovereigns weighing 301.450gms. and the Indian currency of Rs.20,000/-, allowed to be redeemed the gold on payment of fine of Rs.2.00 Lakhs and currency on payment of fine of Rs.7.5 Lakhs, respectively and reduced the personal penalty on the appellant from Rs.50,000/- to Rs.30,000/-. Subsequently, a corrigendum was issued, whereby the redemption fine on confiscated Indian currency was corrected as Rs.7.5 Thousands instead of Rs.7.5 Lakhs. Hence, the present appeal. 3. The Ld. Consultant Shri B.N. Chattopadhyaya assailing the impugned order, submitted that it suffers from self-contradiction. He has submitted that the adjudicating authority on the same set of facts and circumstances, after accepting the defense evidences and submissions, dropped the proceedings initiated under the Gold Control Act,1968 but wrongly confirmed the Order of confiscation& penalty under the Customs Act, 1962. The Ld. Consultant submitted that on this ground alone, the impugned order is not sustainable and hence the order is liable to set aside. Advancing his ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Ld. A.R. for the Revenue Shri Chakraborty countering the arguments advanced by the Ld. Consultant has submitted that the 45 gold coins were seized from the possession of the appellants Shri Mukesh Shah and also a zipper bag under his possession alongwith Indian currency of Rs.20,000/-, on a specific information, while the Appellant was in the premises of a bullion shop. The Ld. A.R. has submitted that merely because the proceedings against the Gold Control Act has been dropped, itself cannot establish that no proceedings against any other law would be allowed to continue. It is his submission that the proceedings against the Gold Control Act is entirely different from the proceedings initiated under Customs Act, because the object and purpose of Gold Control Act is different from the Customs Act. In the former case, the control has been exercised for taking licenses and adoption of procedures on possession gold exceeding certain limit; whereas under Customs Act, the gold being a notified item, even procurement of one gram of gold of foreign origin has to be established through cogent evidences that the same are procured licitly and not smuggled. In support, the Ld. A.R. has r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....M. Srinivas Rao, Shri J. Satyanarayana vide order No. A-68-69/KOL/2013 dated 18/2/2013 and Hon'ble Rajasthan High Court in the case of Durgadas Vs. Union of India-1990 (46) ELT 399 (Raj.) and Raja Ram Bohra Vs. Commr. of customs (Prev.), Kolkata- 2009 (247) ELT 47A (Tri-Kolkata) in support of his aforesaid submission. 5. Heard both sides at length and perused the records. Undisputedly, 45 Nos. of gold coins weighing 301.450 gms. had been seized from the possession of the appellant on 03/6/1987 alongwith Indian currency of Rs.20,000/- on the reasonable belief that the said gold sovereigns were smuggled and the currency were the proceeds of the contraband goods. It is also not in dispute that the said gold coins were of foreign origin; and 43 coins bear inscription of periods prior to 1947 and 2 coins were of 1967 & 1968. The initial claim of the appellant, in his statement dt.03.06.1987 was that being a freelance bullion broker, these gold coins were procured/purchased from the open market and not smuggled by him. On the Indian currency, found from his possession, the appellant disclosed that the same were sale proceeds of four kgs. of silver and furnished the names of vendors/pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also do not agree with the Ld. Consultants submission that since the sovereign gold bearing markings of periods prior to independence, the appellant per se, is not required to establish that the same were licitly procured/possessed by him in the year 1987 as the same were freely available in India prior to independence. In support he has referred to various decisions of this Tribunal. No doubt, apparently it may appeara plausible answer that such sovereign gold coins bearing inscriptions of period prior to independence might have been possessed by his family members prior to independence, but when the officers, on a specific information initiated investigation and questioned about its licit possession on its seizure from the possession of the appellant in a bullion market, not from his house or any of his or family members bank lockers, as per the facts in few of the cited cases, then the burden is heavier on the Appellant to establish the licit possession of the said gold coins through cogent and reliable evidences. However, on analysis of the evidences on record, I find that the approach of the appellant is ambivalent and incoherent. Initially when the goldcoins were recovered f....