TaxTMI 
TaxTMI 
2016 (5) TMI 554
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....s in Chennai as proof of the gold so came to India while recovery of the gold was made from the possession of the appellant. No enquiry was made by Customs from Abubacker. When the gold purchased by the appellant came through Bombay Customs that cannot be said to be illicitly imported. 1.3 It was also urged on behalf of appellant that he was gold- smith of Rajasthan and Abubacker contacted him to take the gold from him, for which, he came to Chennai and in exchange of old gold jewellery to Abubacker, the gold seized by Customs was purchased from him. Of course, appellant had no record to show that he was dealer of gold jewellery. So, credit worthiness of the appellant could not came to record since appellants income-tax status could not be placed before investigation. 1.4 Appellant's claim was that the Commissioner (Appeals) having allowed redemption of the gold, there should not be imposition of unreasonable redemption fine of Rs. 15,00,000/-. Learned Commissioner (Appeals) took market value into consideration to determine redemption fine. That was also faulty because he took the price of gold as on 23.07.2015 instead of the data of possession thereof. 1.5 Appellant subm....
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....her accomplices, Customs proceeded against them before Chief Metropolitan Magistrate. The evidences of Customs was so strong that the appellant and others were convicted. The conviction itself is a testimony of illicit import the gold. Therefore, the MO-1 to MO-3 were not returned to them. That was given custody to Customs. Therefore, they had to undergo rigorous imprisonment with penalty. 2.5 Revenue urged that learned Commissioner (Appeals) although made a mention of section 123 of the Customs Act, 1962 in his order, he failed to appreciate the implications thereof. Evidence of smuggling of gold came out in broad daylight due to recovery of the gold from possession of appellant. The gold carried foreign markings and there was no evidence of import thereof as well as for no lawful possession of the same, that was rightly seized and confiscated. Therefore, learned Commissioner (Appeals) should not have exercised power under section 125 of the Customs Act, 1962 to grant redemption without burden of proof discharged by appellant under section 123 of Customs Act, 1996 as to lawful import. Trial court in the criminal proceeding held that the gold was not property of the appellant. T....
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....im in that room. He also narrated the manner how he concealed the gold to bring to Madras for ultimate delivery to one Gopichand Agarwal by R.K. Verma. He also admitted possession of the offending gold recovered from his room and was quite aware of the foreign markings therein which remained uncontroverted all along before all the forum. 6.1 R.K. Verma, who was the witness to the search and recovery of the offending gold form above said room in hotel Dasprakash was examined by investigation. He revealed that he was staying in Room No.225 of Hotel Mahashakti International, No.371, Mint Street, Madras-79 having come from Delhi travelling by Tamil Nadu Express to collect the gold from Rajaram Johra for ultimate delivery to one Gopichand (Soni) Agarwal. A railway ticket bearing No.39301 showing his travel from New Delhi to Madras with sleeper charge ticket No.D561885 for Rs. 34/-was recovered from him. That was unrebutted. 6.2 R.K. Verma in his further statement dated 23.04.1992 under section 108 of the Customs Act, 1962 stated that he came from Delhi upon being asked by Rajaram Johra to meet him in Chennai. He was staying in Room No.225, Hotel Mahashakti International, Madras an....
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....ni were turned down finding no substance therein and ill-founded. Both of them were found to have been actively and consciously involved in the smuggling along with Rajaram Johra. 8.2 Rajaram Johra by his letter dated 30.06.1992 informed the Assistant Collector (Customs) that he is a goldsmith by profession and he came into contact with one Abubacker from Malappuram, of Kerala. Abubacker visited Dargah in Ajmer every year. He phoned him in the first week of April, 1992 and told him that he shall be arriving from Dubai to Mumbai on a short and urgent trip to place order with him for gold ornaments weighing roughly 2.5 to 5.0 kgs of Rajasthani design. Rajaram told him that since he had urgent work in Calcutta he would meet him (Abubacker) in Madras while Abubacker was on his way to Kerala and would take gold bars as well as gold biscuits from him in exchange of the Rajasthani design gold ornaments. Such fabricated story failed to speak truth when the appellant miserably failed to bring cogent and credible evidence in support of such story. Abubacker was stranger to him. He neither provide any details about him nor proved the fabricated story of exchange of Jewellery against gold b....
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....this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold, and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." 11.2 The gold as stated above were found to be contraband goods and customs believed that to be smuggled one when that carried foreign marking and no evidence of lawful import thereof was adduced before investigation, adjudicating authority as well as the Trial court. Appellant along with the accomplices miserably failed before the Trial court to succeed and their trial ended in conviction with no return of the gold to th....