TaxTMI 
TaxTMI 
2023 (8) TMI 205
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....nch Centre as mentioned in those slips, that a search was carried out by the Officers of DRI, Jaipur at the said Centre on 18.09.2020 itself. During the search, a gold bar weighing about 999.940 grams was recovered from one Shri Suresh Chand Garg who was found present at the said premises during the search proceedings. 1.2 On being enquired, he informed the DRI Officers that the said gold as has been obtained from melting the entire jewellery which belongs to his family and families of two other brothers. He had brought the said gold to M/s. New Satyam Tounch Centre for getting checked the purity of melted gold. However, M/s. New Satyam Tounch Centre, Jaipur issued the Invoice no. 25 dated 18.09.2020 in the name of Shri Mukesh Ji. Department formed an opinion that he could not produce any evidence in support of his claim nor he could give any satisfactory explanation about why the slip bears name of Shri Mukesh Ji instead of appellant's own name. Thus, on account of reasonable belief that the gold bar found in possession of Shri Suresh Chand Garg might have been the smuggled one that the officers detained the gold bar under Panchnama dated 18.09.2020 itself. The appellant submitte....
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....ld issued by M/s. New Satyam Tounch Centre. It is impressed upon that the appellant has no connection with the referred case except that he was found present at the time when DRI officers searched the premise of M/s. New Satyam Tounch Centre, Jaipur pursuant to aforesaid recovery. It is submitted that the gold which was lying in M/s. New Satyam Tounch Centre was not detained, department wrongly detained appellant's gold who was present just as customer of M/s. New Satyam Tounch Centre. The appellant has given the reasonable and proper reply that the gold is melted out of the jewellery owned by the joint family of the appellant being inherited from his grandfather Shri Badri Prasad Garg who was holding investment in gold jewellery/ornaments. After his death in the year 2014, those jewellery/ornaments were divided among his descendants including the appellant. To have the latest jewellery out of those inherited ornaments that the joint family decided to get the old jewellery melted from M/s. Anil Galai Centre, Bharatpur who had issued a receipt also on 17.09.2020. After getting the melted gold in the form of a bar of 999.940 grams with a small piece of 2.86 grams that the appellant v....
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....y and 100 grams per male member of the family, need not to be seized. 3.2 Learned counsel further impressed upon that the gold of appellant was weighing 999.940 grams with the purity of 99.80% Learned counsel has relied upon the decision of this Tribunal in the case of Madhukar Sonaba Bhagat Vs. Commissioner of Customs (Prev.), West Bengal reported as 2019 (368) E.L.T 990 (Tri.-Kolkata), wherein it was held that when there is nothing on record to suggest that the pieces which were seized had any foreign markings, there seems no reasonable belief for the seizure and for invoking Section 123 of the Customs Act, 1962. The decision of this Tribunal, Kolkata Bench itself in another case titled as Commissioner of Customs (Prev.), Shillong Vs. Manisha Devi Jain reported as 2019 (370) E.L.T 401 (Tri.- Kolkata),wherein it was held that Indian Origin remolten gold/gold ornaments could not be legally confiscated as its possession is not prohibited under any provisions of law. Learned counsel has also relied upon the decision of Commissioner of Customs, Chennai III Vs. Shri Mohammed Ali Jinnah reported as 2023-TIOL- 418-CESTAT-MADto impressed upon that when the report of expert does not conta....
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....urden under this provision can be invoked if there is a reasonable belief that the goods in question are smuggled one. 6. I observe that the show cause notice in the present case was issued in November, 2020 whereas the appellant had made his submission vide his letter dated 30.09.2020 mentioning that the gold recovered from his possession was the gold melted into bar/brick out of the jewellery and the ornaments belonging to the family of three brothers including the appellant. The said jewellery also included the jewellery inherited from their grandfather. The appellant along with the said letter had produced pictures/photos of his family members wearing the gold jewellery. He even had given the letter issued by the person who had melted the said jewellery. It is department's admitted case that there were no foreign markings on the gold recovered from the appellant. It is also department's own acknowledgement that case against appellant is an accidental case which is not based on any pre-information. 7. I also observe that information was actually against an Innova car bearing registration no. RJ19FA 0369 for having smuggled gold in it. The said car was intercepted at Bilara, Jo....
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....er than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) In any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold, and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." 7. It is true that as per the above provisions of Section 123 of the Customs Act, 1962 it is not required that gold should contain foreign markings and even gold in primary form or jewellary could also be covered as per the language of the provision. But whether onus of Indian origin on any primary gold or jewellery bearer is cast upon the person in possession of such gold. It may be appreciated that when the provisions of Section 123 of the Customs Act, 1962 were enacted the Gold Control Act was also in operation and gold was considered to be a very sensitive commodity. There was subsequent liberalisation in import policy with respect to gold and even foreign marked gold was allowed to be imported through baggage and through Banks on fulfilling certain conditions. On licit i....
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....n Zevares have subsequently stated that they were not sure that the gold under seizure was the same as was purchased from them. Naturally a person who has sold the gold, cannot confirm whether the gold seized by the Customs Officers from that person, is the same gold or not. But the said statement made by M/s. Chauhan Zevares further confirms that the sixteen pieces of gold were, in any case, purchased by Shri Kapildeo Prasad from the said M/s. Chauhan Zevares Pvt. Ltd. 13. The Tribunal in the case of S.K. Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) E.L.T. 415 (Tri. - Mum.) observed as under : - "7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain....
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....ery, purchased by him. Minor mismatching of difference in weight as calculated by the Adjudicating authority will not make the bills as an afterthought. There could be non-observance of provisions of some other enactments like income-tax or sales tax laws but the same cannot be grounds for confiscation of goods under Section 111 of the Customs Act, 1962 when there is no iota of evidence that seized gold bars are of foreign origin or smuggled into India. Suspicion/presumption howsoever strong cannot take the place of an evidence. I also rely upon the decision of Hon'ble Bombay High Court in the case of Union of India Vs. Imtiaz Iqbal Pothiawala reported as 2019 (365) E.L.T. 167 (Bom.), wherein it is held as follows: "The Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple - (2003) 8 SCC J752 has observed as under :- "However as held in A. Raghavamma v. A. Chenchamma [AIR 1964 (SC) 136] there is an essential distinction between the burden of proof and onus of proof : burden lies upon a person who has to prove the facts and never shifts onus of proof shifts. Such a shifting is a continues process in the evaluation of evidence. In our opinion, i....
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....d 78 thereof. We find that this decision, in fact, reiterates the general principle laid down by the Apex Court in R.V.E. Venkatachala Gounder (supra) about the shifting onus. Besides, one must not loose sight of the fact that the Nizam Institution of Medical Sciences (supra) decision dealt with Medical negligence, where the doctors would be best able to explain the circumstances leading to a particular result. In fact, in some cases of medical negligence, the maxim 'Res ipsa loquitor' i.e. the thing speaks for itself would also apply." 8. From the order under challenge, I observe that the findings of original adjudicating authority have been upheld. I observe that the most of the findings of the authority are the outcome of the presumption. While rejecting the plea of gold being melted out of family jewellery, the authority has simply held the said submission to be the concocted one, without any cogent proof or reasoning except on the presumption that it cannot be a coincidence that three of the brothers will decide at the same time to get the jewellery in their possession to be melted that too to into one common piece. There is no rebuttal to the submission that three of the br....
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.... no possibility for Shri Anil Kadam to appear on 02.11.2020. No further opportunity was ever given to him to appear. Resultantly, I find that there is no evidence on record to show that Shri Sunil Kadam/Shri Anil Kadam had avoided their appearance before the authorities to prove that they had manipulated the said bill invoice and that the bill is fake. 10. The another ground to book the appellant who admittedly was accidentally trapped, is that the receipt with the appellant issued by M/s. New Satyam Tounch Centre was not in the name of appellant but was in the name of one Shri Mukesh. I observe that appellant had explained this ambiguity by saying that it was COVID time and he was wearing mask while disclosing his name, it is because of mask that the name disclosed as Suresh was heard a Mukesh. The authority has ignored the said explanation on the basis of assumption and surmises only. There is no evidence on record nor any investigation to enquire as to whether there is anyone called Mukesh or as to who actually is the person from whom the appellant acquired possession of the foreign smuggled gold. I observe that to corroborate his movement from M/s. Anil GalaiCentre to M/s. New....