TaxTMI 
TaxTMI 
2024 (5) TMI 477
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....GA/1/2024 before the Hon'ble Calcutta High Court. The Hon'ble High Court has disposed of the appeal filed by the Department vide Order dated 10.04.2024 wherein the Hon'ble High Court made the following observations:- "The case of the appellant department is that the bank has taken a specific stand that the bank does not provide gold bars without serial numbers and the seized gold does not contain the serial number and the allegation is that the serial number stands defaced. In our view, all these factual issues were required to be gone into by the Tribunal even while ordering provisional release, more particularly when gold is a notified commodity under section 123 of the Act and if there is an allegation that seized gold is smuggled gold then onus is on the person from whom seizure was effected to prove that the gold was validly purchased within the territory of India. Unfortunately, the learned Tribunal had not endeavoured to do any such exercise while passing the impugned order except for observing that in the interest of justice the order is passed. This, in our view, would be wholly insufficient because the learned Tribunal is the last authority to record a finding of fact....
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....search of the employees in the said vehicle, the officers suspected that the 4 gold bars available with the employees of the appellant-company were smuggled in nature. Accordingly, the officers recorded statements from the employees of the appellant-company and seized the 4 gold bars valued at Rs.1,95,18,867/-. (iv) While seizing the gold bars, the officers have to follow the procedure as laid down under Section 110(1B) and 110(1D) of the Customs Act, 1962 as per which the officers have to prepare an inventory of the goods containing details such as description, quality, quantity, mark, numbers, country of origin and other particulars, to identify the goods. However, in this case, the officers have not followed the procedure as laid down in Section 110(1B) and 110(1D)of the Act. (v) It is evident from the Panchnama that the employees have categorically stated that the appellant-company is the owner of the said gold bars and they have brought them for handing over the same to the job worker viz. M/s. Kalyan Jewellers for marking it as jewellery. Accordingly, the appellant contended that there is no 'reason to believe' that the gold bars seized are smuggled in nature or l....
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....in W.P.O. No. 1897 of 2023 before the Hon'ble High Court of Calcutta. The Hon'ble High Court disposed of the said Writ Petition vide Order dated 19.01.2024 directing the appellant to make an application under Section 110A of the Customs Act before the authority concerned for release of the gold by 22.01.2024 and further directing the Proper Officer to pass a reasoned speaking order after hearing the appellant by 31.01.2024. (xi) Pursuant to the above direction the Hon'ble High Court, the appellant made a representation for provisional release of the 4 gold bars along with the motor vehicle before the Ld. Commissioner of Customs (Preventive). The Ld. Commissioner vide impugned order dated 31.01.2024 rejected the request of the appellant for provisional release of the 4 gold bars and the said vehicle on the ground that the appellant-company despite claiming ownership, failed to correlate the said gold bars with the invoice and other purchase documents, in the absence of serial numbers on the subject gold bars. (xii) The appellant filed appeal before this Tribunal against the order dated 31.01.2024 passed by the Ld. Commissioner of Customs (Preventive), Kolkata. 2.1. This Tribuna....
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....king list issued by M/s. Brinks India Pvt. Ltd. at the time of purchase of the gold are incorporated in the challans issued for job work; that this substantiates that the same gold bars purchased by them were delivered through the challans for the purpose of job work. 4.2. Accordingly, the appellant submitted that they have established the correlation between the gold purchased from HDFC Bank Ltd and the gold bars seized by the Department on 11.10.2023. 4.3. In view of the above, the appellant prayed for provisional release of the said gold bars. 5. The Ld. Departmental Representative appearing on behalf of the Revenue submits that the employees of the appellant were not having the challans in their possession at the time of seizure of the gold; the gold purchased by the appellant from M/s. HDFC Bank Ltd. and the gold seized could not be correlated; accordingly, he opposed the provisional release of the gold to the appellant. 6. Heard both sides and perused the appeal documents. 7. We observe that the appellant has procured 14 kgs. of gold bars from M/s. HDFC Bank Ltd. While purchasing the 14 gold bars, separate invoices have been issued by M/s. HDFC Bank Ltd. for 10 gold bars....
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....of serial numbers 220, 221, 222 and 223 at the time of personal hearing before us. It was found that the challans were serially numbered and the signature of the authorized signatory available in challan nos. 220, 221 and 222 were tallying. Thus, we find that the appellant has prima facie established that they have issued the Challan bearing Gate Pass No. RM/2023-24/KOL/222 dated 11.10.2023 for the purpose of job work of the 4 gold bars of 1 kg. each through M/s. Kalyan Jewellers. A perusal of the said challan also reveals that the gold bars having mark/numbers as "4400493-96" were issued for job work by the appellant. We find that the same marks and numbers are available in the packing list issued by M/s. Brinks India Pvt. Ltd. at the time of release of the 14 kgs. of gold bars to the appellant. 8.1. Thus, we hold that the appellant has prima facie established the correlation between the 4 kgs. of gold bars purchased by them from M/s. HDFC Bank Ltd. and the gold seized by the Officers on 11.10.2023. The present proceedings are only related to provisional release of the seized gold. The documents submitted by the appellant prima facie establish a correlation between the 4 gold bar....