TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 783
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....arwal. The same was confirmed by OIO No. 33/CUS/CC (P)/WB/2017 DT 20.02.2018. Hence this appealNo C/76862/2018. 2. Learned Counsel for the appellant, Shri H. K. Pandey, submits that the appellant visited Kolkata on 22.01.2016 with 3 Kgs of Primary Gold; gets it embossed with certain fictitious marking with the help of Shri Anil Kumar Agarwal @ Anil Kathuria; at about 18.45 Hrs; both of them were apprehended by Customs Officers in plain clothes and were brought to Custom House, Kolkata; three pieces of gold bars were taken from him; he and said Anil were kept in separate rooms; he was constantly threatened and subjected to mental torture by the staff; on 23.01.2016, he was asked to put his signature on a few pre-printed papers and also compelled to write as per their dictation with the assurance that his bail would not be opposed; he was produced before the Metropolitan Magistrate, Kolkata and was granted bail and left for home traumatised. 2.1. Vide letter dated 30.3.2016, in reply to summons dated 23.02.2016 from the Superintendent of Customs, the Appellant submitted that his statement recorded on 22.01.2016 was obtained under coercion and threat; he was not allowed to write the....
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.... recovery of other goods along with contraband; this proves that there was no reasonable believe formed that it was liable to confiscation as no sample was drawn or any preliminary test was caused before effecting the seizure; initial burden to prove smuggled nature of the gold being not there, the Department failed to shift the burden as contemplated under Section 123 of the customs act, 1962 upon the owner; he relies on UOI VsImtiazIqbal Pothiawala 2019 (365) E.L.T. 167 (Bom) and on CC(P), WB Vs Raj Kumar Jaiswal 2006 (204) E.L.T. 561 (Cal.). 3.2. Learned Counsel further submits that the appellant has adduced documentary evidence in support of his legal possession of the seized gold which is nothing but the melted and refined form of old jewellery; it is a well-known fact that Kolkata is the best market place of goldsmiths in eastern India; there are a number of melting houses operating over in the city; some sort of foreign marking made to get a better acceptance by the buyer, does not prove smuggled nature of the gold; He relied upon the following decisions by Tribunal : (i). Nand Kishore SumaniVs CCCE & ST, Siliguri [2016 (333) ELT 448 (Tri. - Kol)] (ii). MadhukarSonabaBh....
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.... appeal is liable to be rejected. 5. Heard both sides and perused the records of the case. Learned counsel for the appellants submits that in the instant case, the appellant was apprehended at Howrah Railway station and was taken to Customs Office. There 3 pieces of Gold was seized from him. He alleges that the procedure for personal search as per Section 62 of the Customs Act, 62 was not followed and no Panchnama was drawn. Though the Panch witnesses signed on the seizure memo, their particulars like age, parents name, address etc. were not noted. The sanctity of search and seizure is vitiated as proper procedure was not followed; moreover, as the cross examination of the panch witnesses was not accorded, a serious doubt is cast on the reliability of the entire proceedings. The Learned Authorised Representative for the department in turn submits that the appellant has not taken these pleas before the adjudicating authority and is taking these pleas for the first time at the appellate stage and hence, inadmissible. We find that these are not facts of the case but the basic legal issues involved in the case. Even though it is a departmental proceeding, appellant's right to raise le....
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....he gold found in the possession on 22.01.2016; he further submitted that the gold under seizure was melted out of old jewellery inherited by the joint family on demises of his grandmother; as per the advise of Shri Ankit Kumar Agarwal @ Anil Kathuria, he brought those pieces to Kolkata to get the fake marks embossed on the pieces so as to fetch better prices ; he also submitted a valuation report dated 31.03.2013 and papers relating to inheritance dispute in a Court of Dhanbad. 7.1. On-going through the case papers, it is seen that the Department has not pursued the investigation to verify the veracity of the claim of the appellant though show-cause notice came to be issued on 18.07.2016, after a clear four weeks from the claim by the appellant. It is interesting to note that the show-cause notice while alleging that the initial claim of the appellant that the impugned gold was purchased from one Mr Rajesh at SonapattiBurra bazar was false, the investigation does not specify steps taken to locate the said Mr Rajesh except showing that the inquiries conducted in this regard were not successful and hence the claim of the appellant was incorrect. However, while recording the statemen....
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....condly, the questions which arise for our consideration in this case is in the context of the application of Section 123 of the Act in respect of the goods notified therein. Gold is an item which is notified under Section 123 of the Act and it provides that burden of proof in case of notified goods, would be upon the person from whose possession and/or the person who claims ownership of the goods to prove that the seized goods are not smuggled goods. However, before the aforesaid burden could be cast upon the person who claims to be the owner of the seized goods, the Revenue should be able to establish that the goods seized under Section 110 of the Act, was on a reasonable belief that the imported goods were smuggled goods. Therefore, where seizure is a subject of challenge on the ground of absence of reasonable belief then, the question of burden of proof on the person, claiming to be the owner of the goods, would arise only when the challenge to seizure is, negatived. In the facts of the present case, neither before us nor before the authorities under the Act, has the respondent No. 1 challenged the seizure for absence of reasonable belief that the seized gold was smuggled goods.....
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....n Bullion Merchants Association) Rules, gold bars are required to have unique serial number. We also find that one PAMP gold bars have following qualities :- * Gold bars contains one kilogram, or 32.15 ounces of .9999 fine gold. * Unique serial number. * Includes Assay Certificate. 7.4. We find that it was incorrect to brush aside the submissions saying that submissions based on websites are not authentic to be accepted or relied upon. Particularly, in the days of internet, such an averment is not convincing. In view of the above, we find that there is at least some reason in the claim of the appellant. We find that the department was happy just to carry the preliminary contention that the gold pieces recovered from the appellant are of foreign origin as they had foreign markings. We find that department has neither pursued the case vigorously to arrive at a logical conclusion nor has bothered to counter the assertions/submissions of the appellants at least to reinforce the initial belief that the department entertained that the gold seized was of foreign origin. There is no whisper in the entire show cause notice about the origin of the gold bars seized from the appellant. ....
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....o the officer of customs, he shall be searched only in that manner. It is not up to the officer of customs to make this choice or elect before whom the accused is to be taken. Therefore, even assuming that the officer taking the search is a Gazetted Officer, it is still imperative for him to comply with his obligation to apprise the suspect of the legal rights available to him under Section 102. Also because, upon exercise by the suspect of his right to be taken before a Gazetted Officer or magistrate, the provisions of Section 102(3) come into play, which, in my opinion, is a check on the misuse of power and also provides an additional measure of protection to the suspect. Section 102(3) provides that once the suspect is taken either before the Gazetted Officer or the magistrate, whichever the case may be, such Gazetted Officer or magistrate is empowered to forthwith discharge the person if he sees no reasonable ground for search, or otherwise direct that the search be made. In my opinion, the suspect will be denied of this additional degree of protection/opportunity if a Gazetted Officer himself takes search and does not apprise the suspect of his rights under Section 102 thereby....
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....a on 22.01.2016; the appellant claims that call records provided show that Anil Kathuria was using the mobile of his family members; Shri Anil Kathuria called several times between 01.01.2016 to 26.02.2016; he alleged that Customs authorities have not probed all the phones used by Anil Kathuriaand the CDR of the same; he also claims that gold found with Shri Kathuria was not seized and he was not arrested. The claim of the appellant can be brushed aside as an afterthought. However, in the entire scheme of things in the case, we find that Shri Anil Kathuria has a role which was not brought out very clearly by the investigation. It gives certain substance to the claim of the appellant that the role of, Shri Anil Kathuria had not been investigated,deliberately and willfully. However, as this is not the subject of our discussion, we need not go in to the matter more deeply. 10. Non-drawl of Panchnama at the Railway station as well as at the Customs House, the absence of details of the witnesses along with their signatures in the inventory prepared, non-pursuit of the whereabouts of Shri Raju of Sonapatty, Burrabazar, delay in the search of house premises of the appellantetc certainly ....