AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1625
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....on 27/11/2013 at Customs Commissionerate, Lucknow wherein he stated that he has been doing business of making gold & silver ornaments for the last 20 years; that he is educated upto class 12th; that the gold carried by him had been handed over to him by Mr. Mridul Agarwal of Bahraich (About 1 kg) and Shri Satish Kumar of Bahraich (About 700 grms.); that the gold had been handed over to him at his shop at about 11:00 AM in Bahraich; that he does not know name and address of the person to whom the goods were to be delivered; that the said Foreign Origin Gold has been smuggled into India through Nepal by the said Shri Mridul Agarwal and Shri Satish Kumar; that it had been handed over to the appellant for delivery at Lucknow. That he had under taken to deliver the said gold at Lucknow on a remuneration of Rs. 1200/-. 4. That on the belief that the Foreign Origin Gold had been illegally imported from Nepal into India, in contravention of Section 111 of Customs Act, 1962 and Notification No.9/96 dated 22/01/1996 issued there under, was liable to confiscation under Section 11 of Customs Act, 1962, was seized under Section 110 of Customs Act, 1962. 5. That Shri Krishan Kumar Agarwal F/o ....
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....and that he had returned the aforesaid jewellery on 07/01/2014. He again reiterated that the seized foreign origin gold was delivered to him on 27/11/2013 by the said Shri Mridul Agarwal and Shri Satish Kumar through their servants. The appellant also stated that on earlier two occasions also, said Shri Mridul Agarwal and Shri Satish Kumar have given him gold for delivery at Lucknow. 10. That a joint show cause notice dated 15/05/2014 was issued to Mr. Shakil Ahmad Khan, Shri Mridul Agarwal and Shri Satish Kumar. It proposed to:- (a) Confiscate the seized gold weighing 1700.73 grms under Section 111(b) & 111(d) of Customs Act, 1962 for contravention of Section 111 of Customs Act, 1962 and Notification No.9/96 dated 21/11/1996 and also the provision of Notification No.63/94 dated 21/11/1994 issued under Section 7(i)(c) of Customs Act, 1962. (b) Confiscate the packing material under Section 118 of Customs Act, 1962. (c) Impose penalty under Section 112 of Customs Act, 1962 on Mr. Shakil Ahmad Khan. (d) Impose penalty under Section 112 of Customs Act, 1962 on Shri Mridul Agarwal and Shri Satish Kumar. 11. That the show cause notice interalia alleged as under:- (a) The 1700.73 g....
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....so expired after some time. 13. The other appellant Shri Satish Kumar also contested the show cause notice by filing reply dated 10th June, 2014 wherein inter-alia he stated that he is the owner of M/s Goyal Jewellers situated at Hanuman Gali, Chowk, Bahraich is engaged in making of new ornaments from old ornaments and for this, they are registered, as required. That he is economically too weak to purchase 700gms of gold. That Shri Shakeel Ahmad Khan is an old and skilled artisan of gold and he works for almost all the traders or jewellery shops in Baharaich. Shri Khan usually delays the work of small traders like him. Whenever, he has work with Shri Khan, he contacts him on telephone for making or repairing of ornaments. He had given some ornaments to Shri Khan for repairing which were not delivered despite several reminders and that is why he had scolded Shri Khan on phone. Due to this reason only, it appears Shri Khan has taken his name as owner of part of the gold recovered by the officers. Further, Shri S.A. Khan has retracted his statement later on wherein he stated that in order to save himself he had given a wrong statement to the officers. Further, during search of busine....
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....ey had scolded him, so as to implicate them falsely, which is not believable. Further, relying on the ruling of Hon'ble Supreme Court in the case of Commissioner of Customs, Madras Vs D. Bhoormull reported at 1983 (13) ELT 1546 (SC) the learned Commissioner has held that the 14 Pcs. (broken) of Gold bars totally weighing 1700.730gms valued at Rs. 53,23,285/- is liable to confiscation and accordingly, confiscated in absolute terms under Section 111 (b) & (d) of the Customs Act, 1962. Further, Learned Commissioner was pleased to impose penalties under Section 112 of the Act, as follows:- a. Shri Shakil Ahmad Khan - Rs. 5Lakhs b. Shri Mridul Agarwal - Rs. 20Lakhs c. Shri Satish Kumar - Rs. 10Lakhs. Being aggrieved, the appellants preferred appeal before this Tribunal. 16. The learned Counsel appearing for Shri Mridul Agarwal and Shri Satish Kumar, states that the penalty under Section 112 of the Act is not leviable on them. The statement of Shri Krishna Kumar Agarwal father of Shri Mridul Agarwal was recorded on 28/11/2013 wherein he had stated that his son had given some gold for carrying to Lucknow to Shri S.A. Khan, was subsequently retracted on 03/12/2013. That Section 112....
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....ner of concern with the seized Gold and he has been falsely implicated by the Customs Officers after knowing that he is a jewellery artisan (Gold smith). Further, gold is not prohibited for import and the same can be imported openly upon payment of the prescribed duty. Gold is not notified goods under Section 111 in the list of prohibited goods. He further states that the order of absolute confiscation is bad and should be allowed to be redeemed to him. The learned Counsel further states that there is no case of imposition of penalty under Section 112 of the Act made out. The only case made out against the appellant is that he has not been able to discharge the burden of proof, as required under Section 123 of the Customs Act, which provides that 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 not smuggled goods, primary relies on the person from whose position the goods were seized. Accordingly, he prays for setting aside the confiscation and penalty and release of the Gold to him. 18. Heard the learned A.R. for Revenue has relied on the impugned Order. 19. Having c....