TaxTMI 
TaxTMI 
2023 (11) TMI 177
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....s on 24/10/2016. Meanwhile two independent witnesses were called by the Customs officers. The officers informed the witnesses in brief about the specific information received and requested them to witness the search operation based on the information and they agreed to the same. The officers on reaching the premises of M/s. Gouri Gold House asked for the owner of the said premises. A person named Shri Prasanta Sarkar came forward and claimed to be the owner of the said premises. The officers introduced themselves to the owner and also informed him about the purpose of visit, which was understood by him. The officers showed him Search Warrant issued by the proper authority. Owner, Shri Prasanta Sarkar allowed the officers to conduct the search by putting his signature over Search Warrant. The officers first offered the owner to search themselves, but the owner refused to do so. 3. The officers then searched the said premises in presence of the owner and two independent witnesses. During search 12 (twelve) pieces of yellow metal believed to be gold of foreign origin of total weight 1218.690 Grams of value Rs.38,13,783/- (Thirty Eight Lakh Thirteen thousand Seven Hundred Eighty Three....
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....gn origin having inscription as "H.ARGOR.SA" of weight 218.54 grams, alongwith one file containing purchase bills (Pages 01 to 18), Exercise book containing sales record (pages 01 to 91, entry in pages 03 to 86 and rest is blank) 01 Nokia Mobile-Model 1110i, IMEI No.- 357697/01/484808/1, With SIM card having Mob.No.7278638554 (AIRCEL) of NCV form the possession of the owner namely Mr. Prasanta Sarkar, the said Noticee No.1. The Customs Officers asked the owner to produce licit documents in connection with the said recovered yellow metal believed to be gold recovered from his premises, but he failed to produce the same. Thereafter, the Customs officers served one spot Summons under Section 108 of the said Act to Mr. Prasanta Sarkar, and also requested two independent witnesses to accompany them to P&I Branch, CC(P), W.B., Kolkata, Custom House, at 15/1 Strand Raod, Kolkata alongwith recovered goods for other customs formalities as the same was not possible at the spot. The Customs offices along with Shri Prasanta Sarkar and two independent witnesses left the spot and reached Custom House, 15/1, Strand Road, Kolkata at about 19.00 hours on 24/10/2016. 4. At Custom House the officers....
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....cuted under Section 135 of the said Act. 8. Thereafter, statements of the appellants were recorded. A show cause notice was issued to the appellants for confiscation of the 12 pieces of gold recovered from the search and for imposition of penalty. 9. After affording two opportunities the adjudicating authority held absolute confiscation of the gold in question and held the gold in question liable for confiscation and imposed penalty on both the appellants. 10. The said order was challenged before the Ld. Commissioner(Appeals), who held that the appeal was filed by the appellants before him on 03.10.2018 against the adjudication order dated 23.07.2018 issued on 24.07.2018 after expiry of 60(sixty) days from the date of issuance of the impugned order. Thereafter he dismissed the appeals. Against the said orders, the appellants are before me. 11. The Ld. Counsel for the appellants submits as under:- (1) That the present case incepts from the seizure of 12 pieces of gold biscuits having marking and embossments on them weighing 1218.690 grams being valued at Rs. 38,13,783 /- from the shop premises of M/s Gouri Gold house, vide Seizure Case No. 05/IMP/CL/GOLD/P&I/CCP/WB/2016-17 dat....
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....;62 and each of the appellant was imposed with a penalty to the tune of Rs. 15,0000/- in terms of Section 112(b) of the Act ibid. Additional penalty of Rs. 15,00,000/- was imposed upon each of them in terms of Section 114 AA of the CA, '62. Being aggrieved with the Impugned Order dated 23.08.2018 appeals were preferred by the appellants before the Ld. Commissioner (Appeals) which was disposed off vide Order-in-Appeal No. KOL/CUS(CCP)/AA/149/2019 dated 01.03.2019 on grounds of delay without going into the merit of the case. Finally an appeal has been preferred before this Hon'ble Bench wherein the appellant has made his humble contentions and now he further intends to contend additional points as may be vital and germane to the said appeal. (4) The officer seizing the goods apparently forms the reasonable belief and as such the initial burden in terms of Section 123 of the CA, '62 automatically shifts upon the Department. As such, two poignant points come into the present scenario where the reasonable belief formed by the seizing officer is disputed and the same remains absent while conducting the seizure of goods. Another vital point in question is that the initial burden as cast....
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....pport of lawful possession by claimant - Not controverted in investigation - Claimant duly discharging his burden of proof - No evidence documentary or otherwise adduced by Department to show that gold illegally imported - Gold freely imported in country and abundantly available in market - Seized gold cannot be held to be smuggled - Doubt and suspicion can invite investigation but not sufficient for penal action - Sections 111, 112 and 123 of Customs Act, 1962 The case of Om Sai Trading reported in 2020 (372) E.L.T. 542 (Pat.) "Reason to believe - Meaning and scope - "Reason to believe" not the subjective satisfaction of the officer concerned but to be exercised in accordance with restraints imposed by law and such belief must be that of an honest and reasonable person based upon reasonable grounds - Reasons should either appear on the face of the notice or must be available on the materials which had been placed before him - Section 110 of Customs Act, 1962" (7) The key element U/s. 123 of the CA,'62 is 'reasonable belief, the officer exercising its reasons of believe must be acquainted of the reasons to belief that the same is illegally imported into the co....
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....hereof. The appellant relies on the case of COMMISSIONER OF CUSTOMS (PREV.), SHILLONGVERSUSSRI SANGPUIA, reported in 2005(189) E.L.T.321 (Tri.- KOLKATA), whereof the following has been held: "Foreign origin goods-Absence of documents does not show that goods are of foreign origin- When interdiction of personal private property of a citizen by an officer is effected, law has to be strictly applied. [Para 3(d)]" The Hon'ble Bench may be pleased enough to consider that though some gold carries foreign inscriptions however, the same does not specifically mean that the same has been illegally imported specially when the case is made in the vicinity of the city. Reliance is placed upon the case of S. K. Chains swherein the Hon'ble Tribunal had held the following-: "Admission of purchase of foreign marked gold biscuits from open market without receipt not indicates that gold under seizure is illegally imported, there being no Central Act in existence requiring maintenance of documents indicating such receipts-Section 110 of the Customs act, 1962." In the present case it has been alleged that authenticate bills were produced with respect to three gold bars of 100 grams only to misg....
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....ically no ingredients available with the investigating authorities so as to penalize the appellants under Section 114 AA of the CA,'62. There is no case that the present appellants have done any act which is specified under Section 114AA of the C.A.'62 in other words there are no ingredients to invoke Section 114AA of the CA, '62 against the noticees. The noticee's case gains force from the ratio of the judgments/decisions of the case laws- i) Jai Balaji Industries -Vs- Commissioner of Customs, Visakhapatnam reported in 2018 (361) ELT 429 (AP) and ii) Sameer Santosh Kr. Jaiswal -Vs- Commissioner of Customs (Import-II), Mumbai reported in 2018 (362) ELT 348 (Tri.- Mum.). (15) It is ought to be appreciated that the functioning of the section 111(b) of CA,'62, carries its key element as 'any goods imported' in violation of specified route and in the present case, the enquiry officer, is unable to furnish any evidence whereof, it can be stipulated the soseized goods when seized was under proper reasonable belief that the same has been illegally imported. (16) Section 111(d) of CA,'62, carries its key element as 'prohibition being imposed by any act or any other ....