TaxTMI 
TaxTMI 
2021 (3) TMI 1111
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....p; On search of the appellant personally and his residential premises, nothing incriminating was recovered. The gold recovered from the appellant was absolutely confiscated by the adjudicating authority under Section 111(d), (e), (j) & (l) of the Customs Act, 1962 along with packing material thereto under Section 119 of the Customs Act, 1962. The Hyundai Santro bearing registration No. PB-02-AP-3575 was also ordered absolute confiscation under Section 115(2) of the Act. A penalty of Rs. 1,00,000/- was imposed on the appellant under Section 112 of the Act, but the adjudicating authority refrained from imposing any penalty on Smt. Usha Devi (appellant No.2). The appellant challenged the order of the adjudicating authority before the ld. Commissioner (Appeals), who rejected the appeal filed by the appellant No.1 i.e. Sh. Vijender Singh and imposed a penalty of Rs. 1,00,000/- on appellant No.2 i.e. Smt. Usha Devi. Against the said order, both the appellants are before me. 3.1 The ld. Counsel for the appellants submits that in the case of Smt. Usha Devi in Appeal No. C/60043/2020, the adjudicating authority refrained from imposing any penalty on the appell....
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....ingly that the clarification given by the Department vide letter dated 29.09.2016 is correct, even than the proceedings initiated prior to issue of notice dated 06.06.2016 under Customs Act by the Department is itself barred by limitation. To support his contention, he relied on the decision of this Tribunal in the case of CC & CE vs. Rajiv Kumar Aggarwal - 2007-TIOL-1736-CESTAT-BANG. 3.5 He further submits that the whatsapp messages allegedly exchanged among Mobile No. 9815202128 and 9814409166 with Mobile No. 9815095357 of the appellant is a digital device. There is neither any expert opinion nor any forensic report thereto brought on record confirming whatsapp message remitted to/from Mobile No. 9815095357 nor call details from mobile company brought on record. Therefore, the appellate authority failed to appreciate that the appellant in reply to show cause notice has categorically stated that whatsapp conversation is manipulated in order-in-original. Further, in appeal before the Commissioner (Appeals), the appellant has specifically mentioned that whatsapp text message prima-facie reveals it is an cropping and it has also been mentioned that whatsapp conversation allege....
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....ds certified by judicial magistrate 1st Class, Amritsar on 19.05.2017 also does not confirm 2 gold pieces weighing 394.57 gram were bearing any foreign market. - The appellant was admittedly present at the place of incidence and perusal of panchnama reveals panchnama proceedings dt. 06.07.2015 was not carried out in the presence of the appellant. The appellant made specific remarks on the body of panchnama on 06.07.2015 and it reads as "I have just read no proceedings done in my presence and before me ". - There is nothing brought on record to prove that 394.57 grams of gold recovered was of foreign origin and was brought by Pax arrived by Air India flight No IX-192 on 06.07.2015 at SGRDJI Airport. The appellant submitted that said gold belongs to his wife and was given by his father-in-law to his daughter (appellant's wife) who has expired on 04.11.2012. The statements dt. 15.07.2015, 17.07.2015 and 17.08.2015 of Usha Devi W/o appellant refers. - The ld. Appellate Authority incorrectly ordered confiscation of impugned goods under section 111 (b) & 111 (d) of Customs Act without appreciating the facts on records. - The p....
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....00 (120) ELT 280 (SC) (ii) Naresh J Sukhwani vs. UOI - 1996 (83) ELT 258 (SC) (iii) Ramesh Chandra Mehta vs. State of West Bengal - AIR- 1970-SC (iv) Satnam Singh vs. Asst. Commr. of Customs - 2012 (275) ELT 0535 (P&H) 4.4 He further submits that as smuggled gold is notified goods in terms of Section 123 of the Customs Act, 1962, therefore, burden of proof lays on the appellant. In this regard, he relied on the following case laws: (i) Indru Ramchand Bharvani vs. UOI - 1992 (59) ELT 201 (SC) (ii) CC, Cochin vs. Om Prakash Khatri - 2019 (366) ELT 402 (Kerala) (iii) CC, Kolkata vs. Sudhir Saha - 2004 (172) ELT 26 (Calcutta) (iv) Girindra Bijoy Sahu vs. CC, West Bengal - 2001 (137) ELT 619 (Tri. Kolkata) (v) A.S.A. Kabir vs. CC, Madras - 1997 (89) ELT 595 (Tribunal) 5. Heard the parties and considered the submissions. 6. Appeal No. C/60043/2020 - This appeal is against the imposition of penalty of Rs. 1,00,000/- on the appellant namely Smt. Usha Devi. It is a fact on record that the adjudicating authority refrained from imposing any penalty on Smt. Usha Devi and no appeal has been filed....
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....ingh's vehicle did not belong to them. The same has been recorded in para 8.2 of the show cause notice which is reproduced here as under: (viii) Further on being asked about the 400 gms of gold seized on 06.07.2015 from Vijender Singh's vehicle, he started that this seized gold did not belong to them. 9. On going through the statement of Sh. Vijender Singh, the appellant, the statement given on the date of incident at the time of recovery of the impugned gold, the statement was recorded under Section 108 of the Customs Act, 1962 which is exculpatory. Further, the statement of Smt. Usha Devi, wife of the appellant was also recorded under Section 108 of the Customs Act, 1962 who claims to be the owner of the gold in question. In support of her statement, she has produced various corroborative evidences, but all these were discarded by the Revenue without giving in credence to them which is not correct. Further, the statements of the persons recorded under Section 108 of the Customs Act, 1962 heavily relied upon by the Revenue have stated that the 400 grams of the gold seized on 06.07.2015 from the vehicle of the appellant does not belong to them, which clearly sh....