TaxTMI 
TaxTMI 
2022 (6) TMI 785
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....two gold bars' engraved with the markings HERAEUS 9950, 1 kilo (each bar) 24 carats (9950) purity, totally weighing 2 kgs. at Rs. 59,10,000/-. 2. Summons were issued to the appellant on 22.05.2017 to appear on 30.05.2017. The appellant did not present himself before the summoning authority but vide letter dt. 30.05.2017 informed that he was busy in family social matter and hence, was unable to present himself before the summoning authority and requested for adjournment of the hearing for the next date. Accordingly, the appellant was issued summons again on 31.05.2017 to appear on 05.06.2017. 3. The appellant presented himself before the authority on 05.06.2017 and his voluntary statement was recorded under Section 108 of the Customs Act, 1962 wherein he, inter alia, stated that he started a proprietorship concern in the name of M/s New Sky International, 63/12B, Rama Road, New Delhi in the year, 2006; that the said firm used to import sanitary ware, PVC resin, mobile phones till, 2013 but was presently engaged in the local trading of the mobile phones; that he accepted the recovery of the two gold bars of 1 kg. each and cash of Rs.11,31,000/- resumed from his residence vide p....
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....17 to appear on 28.07.2017 but again neither of them appeared. Summons were again issued to both of them on 01.08.2017 to appear on 11.08.2017 and again none of them appeared. Summons were again issued on 04.09.2017 to appear on 18.09.2017 with a covering letter mentioning clearly that, if they did not appear this time then it would be presumed that the gold bars recovered and resumed from the residential premises of the appellant were smuggled gold bars. This time also none of them appeared or sent any reply to the summons issued. 6. Inspite of several summons issued to them, they have not joined the investigation by not complying the summons. Further, they have not submitted any legal documents evidencing the legal possession of the said goods as required under Section 123 of the Customs Act, 1962. Also, the appellant did not produce any legal documents evidencing the licit possession of the said two gold bars recovered and resumed from his residence on 24.04.2017. 7. The said two (2) gold bars of foreign origin, collectively weighing 2000 grams were valued at Rs. 59,10,000/- which were recovered and resumed from the residential premises of the appellant at FF-5, 13/41, Pun....
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....eign markings HERAEUS 9950, 1 kilo (on each bar) of 24 carats (9950) were illegally smuggled. On the reasonable belief that the goods i.e. two yellow gold bars found engraved with HERAEUS 9950, examined and appraised vide panchnama dated 24.04.2017 found in possession of appellant, for which no legal documents could be produced by him, were smuggled in contravention of provisions of the Customs Act, 1962, hence were liable for confiscation. 12. Thereafter, the appellant vide his letter dated 14.10.2017 retracted both his statements dated 05.06.2017 and 13.10.2017, which were recorded under Section 108 of the Act inter alia stating that the statements were not voluntary statement, and he was pressurised to sign on the statement as recorded and dictated by the Officer. In view of the aforementioned premises, it appeared to Revenue that the appellant has failed to discharge the onus on him under Section 123 to explain the licit source of acquisition of the gold having foreign marking. Further, the explanation he has given regarding gift, he is not able to corroborate the same and thereafter he has again stated that the gold received earlier in gift was used in making of jewellery a....
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....ring the adjudication proceedings, which is almost after lapse of nine months from the date of search and recovery. Thus, the genuineness of the will was doubted and it was held that the appellant has failed to discharge the onus under Section 123 of the Customs Act and accordingly confiscation of the two gold bars was ordered by the adjudication order under Section 111(d) and (l) of the Act. Further, penalty of Rs. 5 lakhs was imposed under Section 112(a) and penalty of Rs. 1 lakh under Section 114AA of the Customs Act. 15. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), inter alia mentioning that his father had executed a will during his life time with regard to immovable and movable properties. By the same will he had bequeathed his valuables lying in the house, locker or anywhere else to his younger son Sh. Sandeep (brother of appellant). Further, he has bequeathed his movable assets, fixtures furniture, shares, cash, fix deposits as well as residential flat No. FF-5, 13/41, Punjabi Bagh West, New Delhi to his wife Smt. Sushila, mother of the appellant. By the same will he has bequeathed the two gold bars HERAEUS 9950, to his elder son - th....
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....tand regarding the source of acquisition, the Court below have rightly disbelieved the receipt of the two gold bars under will, by the appellant. It is further urged that Revenue has rightly exercised power of search and seizure which has resulted in the recovery of the two gold bars in question. Further, Section 111(d) of the Act provides that any goods which are imported or admitted to be imported contrary to any prohibition imposed by order under this Act or any other law made for the time being in force, are liable to confiscation. Further, Section 111(l) of the Act states that any dutiable or prohibited goods found in excess than the declaration/ entry made are liable to confiscation. Learned Authorised Representative for the Revenue relies on the following rulings:- a) Om Prakash Bhatia -2003 (155) ELT 423 (SC) b) Sheikh Md. Omer - 1983 (13) ELT 1439 (SC) c) CC&CE, Delhi-IV vs. Achiever International 9 MANU/DE/ 6208/ 2012 d) Jagdev Damodaran vs. Dy. Commissioner of Customs (ACC), Cochin -2017 (352) ELT 5 (Ker.). e) As was held by the Hon'ble Apex Court in Indu Ramchand Bharmani case 1992 (59) ELT 201 (SC), that even if the sellers ....