TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 234
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....ng for waiver of the penalties imposed on them. 1.1. Shri Partha Ranjan Saha (hereinafter referred to as "Appellant No. 4") has filed the Customs Appeal No. 75121 of 2016 seeking waiver of the penalty imposed on him vide the Adjudication Order No. 29/CUS/CC(P)/WB/2015 dated 25.08.2015. 1.2. Since all these appeals arise out of a common order, they are taken up for disposal by this common order. 2. Brief facts of the case are that on a specific intelligence received by the Directorate of Revenue Intelligence (DRI), Kolkata pertaining to smuggling of gold of foreign origin into India from Bangladesh, the Officers intercepted three persons, by name, Shri Ashish Kumar Datta (Appellant No. 1), Shri Goutam Saha (Appellant No. 2) and Shri Ranjit Das (Appellant No. 3) near the premises of 168, B.T. Road, Kolkata - 700 108 on 19.03.2014 at around 3:30 p.m. In response to a query by the said Officers, they admitted to have been carrying gold bar/biscuits of foreign origin in their person. However, none of the said three persons could produce any licit documents in support of the possession, acquisition or transportation of the said gold thereof. Thus, the Officers seized the gold under th....
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..... 29/CUS/CC(P)/WB/2015 dated 25.8.2015 whereby 36 pcs. of gold bars having total weight 5965.75 gms. collectively valued at Rs.1,80,56,424/- was confiscated under Section 111(b), 111(d) & 111(f) of the Customs Act, 1962 and penalty was imposed under Section 112 of the Customs Act, 1962.Penalty of Rs.6,25,000/- was imposed upon Shri Ashish Kumar Dutta; Penalty of Rs.6,50,000/- was imposed upon Shri Goutam Saha; Penalty of Rs.5,80,000/- was imposed upon Shri Ranjit Das, all under Section 112 of the Customs Act, 1962. (ii) 2 pcs. of gold weighing 2,000 gms. were recovered from Shri Ashish Kumar Dutta, 18 pcs. of gold weighing 116.64 gms. each having weight of 2099.52 gms were recovered from Shri Goutam Saha and 16 pcs. of gold weighing 116 gms. each having total weight 1866.24 gms. were recovered from Shri Ranjit Das, near premises at 168, B.T. Road, Kolkata. (iii) It is evident that it is a town seizure and way beyond the limitations and boundaries of any international border and under such given circumstances, even assuming that the seized gold has foreign markings on it, cannot ipso facto conclusively suggest that the said goods were smuggled into India and warrants applicabili....
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.... cannot be confiscated without allowing the appellants to redeem the same by application of Section 125 of the Customs Act, 1962. Hence, in view of Section 125 of the Customs Act, 1962, the goods are required to be released upon payment of redemption fine to the person from whom the goods were seized. Reliance in this regard is placed on the following decisions: * Roshni MathurdasKothadia V. Commissioner of Customs, Hyderabad [2019 (359) ELT 1784 (Tri. Hyd.)] * Commissioner of Customs Delhi V. Ashwini Kumar @ Amanullah [2021 (376) ELT 321 (Tri. Del)] * Commissioner Central Excise and Service Tax, Lucknow V. Islahuddin [2018 (364) ELT 168 (Tri. All.)] * Rajesh Verma V. Commissioner of Customs, Amritsar [2021 (378) ELT 502 (Tri Chan.)] * Mohd. Azeem V. Commissioner of Customs (Airport), Chennai [2005 (186) ELT 440 (Tri Chennai)] (vii) Thus, the appellants submits that the penalty imposed be set aside and the goods be allowed to be redeemed along with consequential benefits. 3.1. The contentions put forth by Shri Partha Ranjan Saha (Customs Appeal No. 75121 of 2016) are as under: - (i) In the impugned order a penalty of Rs. 18,55,000/- has been imposed on him under sect....
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....43 16 of the Adjudication Order that "I think this is enough circumstantial evidence to inculpate Shri Partha Ranjan Saha" cannot sustain in law. (iv) From paragraph 33(i) of the Adjudication Order, it would be evident that the initial statements all dated 19.03.2014 were retracted by the apprehended persons vide petition dated 04.04.2014 before the Ld. CMM, Calcutta (erroneously typed as "CJM Court, Calcutta") under such circumstance, imposition of penalty upon the present appellant on the basis of such retracted initial statements of the apprehended persons, is seriously bad in law. (iv) in the present case if the said initial retracted statements of the apprehended persons, who were not examined u/s 138B of the Customs Act, 1962 and whose cross- examination was also not allowed to the appellant, are taken out of record, there would be nothing against the appellant herein to implicate or connect him with the present case. 3.2. In view of the above, the Ld. Counsel appearing on behalf of the Appellant Nos. 1, 2 and 3 prayed for setting aside the confiscation of the goods in question and for release of the gold on payment of redemption fine. He also submits that the penalties ....
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....burden under Section 123 ibid. is not proved, the gold seized is liable for confiscation. He therefore supported the impugned order confiscating the gold and imposing penalties on the Appellants. 5. Heard both sides and perused the appeal records. Customs Appeal No ( s ). 75118 to 75120 of 2016 : 6. We observe that a total quantity of 36 pieces of gold weighing 5965.76 grams were sized from Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das, the Appellants herein, on 19.03.2014. It is on record that they were not having any documents for the licit procurement of the said gold. The Ld. Counsel appearing on their behalf have admitted that even today, they are not having any documents for the licit purchase of the said gold. His submission is that gold is not a prohibited item and according to the decision cited by him in the case of Commr. of Cus., New Delhi v. Ashwini Kumar Alias Amanullah [2021 (376) E.L.T. 321 (Tri. - Del.)], the goods could not be absolutely confiscated and ought to have been released on payment of redemption fine as per Section 125 of the Customs Act, 1962. Accordingly, he prayed for setting aside the order of confiscation and for release of the g....
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....n decision and has recorded its conclusion in paragraph 26 holding that the respondent and the two co-noticees have submitted that the smuggled/procured gold in question is made out of old gold jewellery purchased in cash and the said fact has not been denied by the revenue by any cogent evidence, therefore the gold in question is not liable for confiscation and the same is required to be released. Further the tribunal holds that the revenue has failed to establish the fact that the cash recovered from the respondent and the two co- noticees are the sale proceeds of the smuggled gold and therefore the cash seized cannot be confiscated and the same is required to be released. Further the tribunal holds that no penalties are imposable on the respondent and the two co-noticees. 24. What is important to note is that though the respondent took a plea that the gold bars was made out of old gold jewellery purchased in cash it was a very faint plea which was raised by the respondent and the co-noticees. Assuming such a plea was required to be considered, the onus is on the respondent and the co-noticees to establish with documents that the gold which was seized was from and out of the ol....
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.... and considering the quantity which has been seized, it can never be the case of the respondent or the other two co-noticees that they have done the melting process at their residence as such melting requires expertise and also use of several chemicals. Thus, the observations of the tribunal have to be held to be without any basis or foundational facts or documents." 6.3. Regarding the prayer of the appellant for release of the gold on payment of redemption fine, we observe that the ownership of the gold has not been established. Thus, the gold cannot be released to the appellants. We observe that this view is supported by the decision in the case of Commissioner of Customs (Export) v. Ashwini Kumar Alias Amanullah [CUSAA 37/2021 & CM APPL. 34847/2023 dated 15.09.2023 -Del HC] wherein it has been held that:- "5. We find that the import of gold is strictly regulated and is permitted only through certain identified agencies, who too must import the same in accordance with a restricted and regulated regime which stands created in terms of the various Circulars issued by Customs as well as the Reserve Bank of India. 6. In the facts of the present case, we thus find that the Adjudi....