TaxTMI 
TaxTMI 
2021 (3) TMI 1114
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....eizer of the said gold and ordered that the S.S.P., Amritsar is at liberty to forward the copy of the order with necessary documents to the Commissioner of Customs, Amritsar or any other appropriate authority/agency as he deemed with who shall be liberty to initiate appropriate action against the accused in accordance with law. Thereafter, on 25.10.2011, Smt. Ramesh Verma, mother of the appellant, filed an application to the Court of Chief Judicial Magistrate, Amritsar stated that she was the registered owner of these ten gold biscuits recovered in the case registered by the police against Sh. Rajesh Verma, her son. She further enclosed the invoice showing the purchase of the said gold biscuits to substantiate the claim. She further requested that these ten gold biscuits lying in the custody of police station, civil lines, Amritsar be released to her. The said application was contested by the Customs Department. Thereafter, on 15.12.2017, the Revenue took the possession of the said gold from the police and the Panchnama was drawn. On panchnama, it is also mentioned that the said gold has been seized and thereafter on 07.03.2018, a show cause notice was issued for confiscation of th....
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....ot be held adverse to the appellant. In fact, in very first statement before the Customs, who have jurisdiction, such claim was made. 3.4 He further submits that the authority below has erred in denying ownership of the gold on the ground that photocopy of invoice issued by M/s Rakesh Jewellers was produced. Further, it was not bearing the description that the gold is of foreign origin. It is a submission that Sh. Naresh Malhotra, Partner of M/s Rakesh Jewellers during the investigation tendered in his statement dt. 27.12.2017 and deposed that gold against invoices in question was sold by them to Smt. Ramesh Verma but the said fact has not been considered. 3.5 He further submits that the Hon‟ble Apex Court in the case of Hanif Khan vs Central Bureau of Narcotics - 2019-TIOL-387-SC-NDPS held that even in cases reverse burden of proof, foundational facts so as to attract the rigours of such provisions have to be established by the prosecution. He also relied on the decision of the Hon‟ble Apex Court in the case of Gian Chand Vs State of Punjab - 1983 (13) ELT 1365 (SC). 3.6 With regard to confiscation, he submits that the Revenue is relying upon panchnama dated 1....
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....tantive brought on record that appellant unlawfully acquired possession of impugned goods; therefore, the impugned order is to be set aside. 4.1 On the other hand, the ld. A.R. submits that these gold biscuits were seized by the Customs on 15.12.2017 and the show cause notice was issued on 07.03.2018 under Section 124 of the Customs Act, 1962, therefore, the confiscation of the goods is not time barred. 4.2 She further submits that the claim of ownership filed by Smt. Ramesh Verma is an afterthought and did not appear to be factual and genuine. 4.3 She further submits that Sh. Naresh Malhotra, partner of M/s Rakesh Jewellers on 27.10.2017 in his statement inter-alia stated as under: • that the invoices and certificate issued on 23.09.2010 did not correlate with the foreign markings as South Africa or Switzerland and that no identity could be established with this certificate as to which invoice covered foreign marking as South Africa or Switzerland. So the invoice and certificate issued by him did not appear to be correlating with the seized 10 gold biscuits. • further, he failed to prove that out of two invoices issued by him was related with the....
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....nder Section 123 would not get attracted." The same view by taken by this Tribunal in the case of E. Eswara Reddy Vs. C.C. (supra) wherein this Tribunal has observed as under: "7. We have gone through the records of the case carefully. The Tribunals in a large number of cases have held that Section 123 is not applicable when the offending goods are seized by the police and handed over to the Customs. If the above ratio is followed in the present case, there is no justification for holding that the goods are liable for confiscation because the Revenue has not discharged its burden. The appellants have stated that the gold under seizure was actually purchased by Smt. G. Sumitra Devi, mother of L. Vijaya Lakshmi from one Shri P. Krishnan who had bought it when he came to India from Singapore on 14-9-96 and from Shri M. Nagaraj, who had bought it from MMTC Ltd. Secundrabad on 9-4-96. The baggage receipt and the original invoice were produced. A part of the gold purchased by G. Sumitra Devi was kept in bank lockers at Kurnool and Hyderabad for safe custody by Smt. L. Vijaya Lakshmi, daughter of Smt. Sumitra Devi with the consent of Shri L. Eswar Reddy, Son-in-law of G. Sumit....
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....8 (corresponding to Section 123 of the Customs Act, 1962). Therefore, the benefit of the provisions of Section 178A of the Sea Customs Act (corresponding to Section 123 of the Customs Act, 1962) could not be availed of to throw the burden of proving that the gold was not smuggled on the accused." Further, in the case of Ghewar Chand Vs. C.C. (supra), again this Tribunal has held as under: "11. I have carefully gone through the records of the case as well as the rival submissions. I find that the law with respect to the applicability of Section 123 of the Customs Act is a well-settled one and is to the effect that when the initial seizure of any item covered by Section 123 of the Customs Act is by a Mazhar drawn by Police Officers, then the said Section would not be applicable to this case. The Department has not been able to cite any case law to the contrary and therefore applying the ratio of the Hon'ble Apex Court decision in the case of Gyanchand v. State of Punjab, I find that since in this case the Customs Officers had effected a seizure from the possession of the Police Officers as a sequel to the Court Order, therefore it is clear that the initial seizure was don....
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....sed of by the Department, then the consequential relief granted herein shall be to the effect that the Sales proceeds thereof would be made available to Shri Ghewarchand." 7. As all the judicial pronouncements stated that the impugned gold seized during the course of investigation by the police authorities, later on handed over to the Customs Authorities, the provision of Section 123 of the Act does not apply and burden lies on the Customs Officers to prove that the goods in question are of smuggled in nature. 8. Admittedly, in the case in hand, the gold initially seized by Punjab police in 2007 and thereafter, it was handed over to Customs authorities by Punjab police itself. In these circumstances, burden lies on the Revenue to prove that the goods in question are of smuggled in nature, which the Revenue failed to do so. In these circumstances, as the Revenue failed to discharge their onus, therefore, the impugned order and seizure of the goods by the authorities below is bad in law. 9. Further I find that Smt. Ramesh Verma moved an application before the Chief Judicial Magistrate, Amritsar on 25.10.2011 with regard to the ownership of the gold by producing the invoices ....
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....firmity in the impugned order. The same is upheld. The appeal filed by the Revenue is dismissed." In view of this, I hold that the gold in question cannot be absolutely confiscated which shows the high handedness of authorities below by absolute confiscation of the goods. 10. Further, I find that when the proceedings were going before the Chief Judicial Magistrate, Amritsar in 2011 itself with regard to ownership of the impugned gold by Smt. Ramesh Verma and thereafter the gold was seized on 15.02.2017, in these circumstances, I hold that the proceedings initiated against the appellant are highly time barred as held by the Hon‟ble High Court of Punjab & Haryana in the case of Famina Knit Fabs vs. UOI (supra), wherein the Hon‟ble High Court observed as under: "10. ....... From the perusal of judgments cited by both sides, it is quite evident that every action including show cause notice must be issued within reasonable period where no limitation is prescribed. Taking cue from Section 28 of Act, 1962 which prescribes maximum 5 years period to issue show cause notice even in case of fraud, wilful misstatement and afore-cited plethora of judgments, we find th....