2020 (1) TMI 359

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....factorily discharged his onus under Section 123 of the Customs Act, 1962 to the effect that the gold seized from him is not smuggled gold and consequently, whether the seizure of the gold under Section 111 and confiscation of Indian Currency under Section 121 and imposition of penalty under Section 112 of the Act, are sustainable. 3. Brief facts of the case are that the Officers of P & I Branch at Kolkata Customs, received information that smuggled gold was being transacted at M/s. Shree Ganesh Refinery, 7, Kannulal Lane, Kolkata and searched the premises in the presence of the appellant and two independent witnesses. The appellant is the owner of the shop premises, which was searched. During search, 9 (nine) cut pieces of yellow me....

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....e process, the Ld. Commissioner, vide the impugned orders - (a)     Ordered confiscation of the seized gold weighing 1718 grams valued at Rs. 49,03,172/- under Section 111(b) & (d) of the Customs Act, 1962; (b)     Ordered confiscation of the Indian Currency amounting to Rs. 18,00,000/- seized from the appellant under Section 121 of the Customs Act, 1962 ; (c)     Imposed a penalty of Rs. 6,00,000/- on the appellant under Section 112 of the Customs Act, 1962. He refrained from imposing any penalty under Section 114AA of the Customs Act, 1962, holding that he could not find any conclusive evidence put forward by the investigation to hold that the docume....

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....ed in the reasonable belief that it is smuggled, burden of proving that it is smuggled, shall be on person from whose possession the gold has been seized, but in this case, the reasonable belief that the gold was smuggled is missing. There is no indication in any of the documents that there were foreign markings on the gold that was seized. The entire demand should fail on this ground alone. Once the question of gold smuggling is not proved, the seizure of any Currency holding it out to be proceeds of smuggling under Section 121 also does not sustain. 6. He would further argue that although the gold was seized without reasonable belief, the appellant has discharged his onus by producing various documents and giving details of his tr....

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....that the gold was smuggled. Therefore, their appeal may be allowed and the impugned order may be set aside. 9. The Ld. DR for the Revenue, reiterated the findings of the impugned order and argued that the confiscation of the gold and imposition of the penalty are sustainable. 10. We have considered the arguments on both sides and perused the records. 11. The allegation is that the appellant has smuggled gold, which is liable for confiscation under Section 111 of the Customs Act, 1962. The gold was not seized while it was being smuggled either at the Port or at the Airport. It was seized from his shop in the City. In such cases, Section 123 of the Customs Act, 1962, provides in respect of the gold and some other notif....