TaxTMI 
TaxTMI 
2021 (12) TMI 1024
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.... 21/10/2014 and CELEBI, the custodian of warehouse, was instructed to not to clear the shipment without the permission of Custom Department. The said consignment was booked in the name of Shri Onkar Nath Singh. The Custom Officers, in the presence of Shri Onkar Nath Singh brought the consignment from CELEBI warehouse to new Custom House on 11/11/2014 and examined the same in presence of Shri Onkar Nath Singh and two more independent witnesses. 1.1 The consignment was found containing two tin boxes collectively weighing 11.8 kgs containing 22 & 18 small parcels respectively. All these parcels were detained for further investigation vide Panchanama dated 11.11.2014. To verify the yellow metal to be gold that the parcels were also got examined by jewellery appraisal on 27/11/2014 who vide the report of the even date verified that the yellow metal and yellow metal jewellery is gold. All 22 parcels since were having yellow metal jewellery or rough diamonds and 18 parcels since were found to contain yellow metal, yellow metal jewellery, and rough diamonds and the metal was verified to be gold, that the consignment was seized under Section 110 of Customs Act 1962, vide Panchnama dated 27....
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....ice under Section 124 of the Customs Act, 1962 was required to be served upon the appellants within six months thereof, else the goods should have been returned to the person from whose possession they were seized. In the present case, the period of six months expired on 27/05/2015 but the show cause notice was issued on 05/11/2015 that is almost after one year of the seizure. Hence, Show Cause Notice itself is alleged to be barred by time. 3.1 On behalf of M/s DI Gold & M/s Ridhi Sidhi Jeweller, in addition, it is submitted that the show cause notice was not properly served upon them nor at the correct address. Also too short a time was given to them to mark their presence before the investigating officer which was not possible. The time and date chart as mentioned in para 12 of the appeal is impressed upon to explain the same & the absence. However, a letter dated 14/09/2015 was given by the proprietor M/s DI Gold Designer Jeweller, Shri Rakesh Agarwal. The appellants further submitted that it is a settled practice that the gold is imported from foreign countries as duty paid gold and thus much of the gold available in the market is of foreign origin. Hence, with respect to....
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....ive to be alleged as the case of smuggling. The evidence collected through the investigation is sufficient to prove that the gold was being transferred in the aforesaid normal course of trade. No evidence has been brought on record about the gold to have been smuggled one. The findings of the Adjudicating Authorities are alleged to be merely presumptive in nature, accordingly, are prayed to be set aside and the appeal is prayed to be allowed. 4. To rebut these submissions, learned DR has mentioned that the requisite documents were never produced by the appellants herein. In fact M/s. DI Gold and M/s. Ridhi Sidhi never co-operated the Department. Despite the issuance of several notices, they failed to make them appear before the investigating authority. Lack of documents is sufficient to hold that the goods were smuggled one, otherwise also, the onus to prove that the seized gold was not received by elicit importation and was not smuggled one was upon the appellants in terms of Section 123 of Customs Act, 1962. The statement of Mr. Pradeep for M/s. Ratusaria Jewellers is highly insufficient to discharge the said onus. Remaining appellants failed to join the investigation. The ....
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.... both the impugned gold pieces and alongwith the third one weighing 138.38 gms. were booked with Mr. Shravan Kumar of M/s Jai Mata Di to be delivered at Mumbai. 5.3 I further observe that though M/s DI Gold designer jewellery and M/s Ridhi Sidhi did not make them available before the investigating officer in furtherance of summon issued to them but from the time & date chart as mentioned in the appeal, it is abundantly clear that the notices were served for just five to seven days time for both these appellants to appear and in fact, most of them were received by these appellant after the date of hearing mentioned therein use to expire. In such circumstances, the findings of the adjudicating authority below that both these appellants failed to co-operate the investigating agency are held to be false on the face of it. These findings are observed to be false also for the reason that M/s DI Gold Designee Jewellery respondent had replied to the impugned show cause notice vide their letter dated 16/03/20107 and M/s Ridhi Sidhi vide their letter dated 15/08/2016. Both of them have objected the issuance of show cause notice after the expiry of period of six months, in addition, hav....
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....the impugned gold. Apparently and admittedly, there is no such evidence on record, I am therefore of the opinion that since the appellant have already disclosed the source of acquisition of gold in question, the initial burden of showing the licit possession of the impugned gold stands discharged by the appellant. The burden stands shifted upon the Revenue to show that the goods proposed to be confiscated were smuggled one. 6.1 I rely upon the decision of this Tribunal in the case of Krishna Kumar Dhandia vs. Commission of Customs, Calcutta 2007 (2019) E.L.T (736), I also draw support from the decision of Hon'ble High Court of Mumbai in the case of Union of India vs Imtiyaz Iqwal Pothiawala reported in 2019 (365) E.L.T. (167) wherein it has been held that burden of proof in case of notified goods is though upon the person from whose possession or the person who claims ownership of such goods to prove that the seize goods are not the smuggled goods. However, it has still for the Revenue to establish the reasonable belief that the goods seized under Section 110 of Customs Act were the smuggled goods. It has been held that when such reasonable belief is challenged, Section 123 c....
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....he appellants in terms of said Section 123. The present, therefore becomes a clear case where department has failed to established that the seized foreign marked gold was smuggled one. Merely because the foreign marked gold is involved, the same is wrongly held to be smuggled one. I draw my support from the decision of the Tribunal in the case of Nitya Gopal Vishwas vs. Commissioner of Customs(Prev), Kolkata reported as 2016 (344) E.L.T. (209) Tri. Kolkata. Otherwise also, in the light of liberalized policy of Central Government, it cannot be held that all foreign marked goods being bought and sold in India are of smuggled nature. I also rely upon the decision in case of Giridhari Dubey vs. Commissioner of Customs (Preventive), Kolkata reported as 2002 (149) E.L.T. (427) Tri. Calcutta. 7. In the present case, when apparently, the show cause notice proposing confiscation of goods seized under Section 110 of Customs Act was issued after one year from the date of seizure. The show cause notice itself gets hit by limitation as the show cause notice was mandatorily to be issued within the six months time of the seizure. The show cause notice has been objected since beginning to ha....