TaxTMI 
TaxTMI 
2025 (6) TMI 1193
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.... the Office of the DRI, along with the vehicle. During the course of search, 56 pieces of yellow coloured metallic bars, which were alleged to be of foreign origin, were recovered from the bag of the appellant. Apart from this, there was recovery of 34 pieces of US currency notes of face value of USD 100/- each, 4 pieces of Indian currency notes having denomination of Rs.2000/-, 61 pieces of new Indian currency notes of Rs.500/-, 34 pieces of Rs.100/-, and the same were seized on the same day. 2.1. Thereafter, the statement of the appellant was recorded on 29th March, 2017 and the appellant was subsequently arrested by the DRI Officers on 30th March, 2017, on the allegation that the appellant was having smuggled gold. The appellant was thereafter presented before the Ld. Chief Metropolitan Magistrate, Kolkata on 30th March, 2019. The appellant was sent to judicial custody on the said date. While the appellant was in judicial custody, his statement was recorded on 05.04.2017. On 07.04.2017, the appellant was granted bail. 3. On completion of the enquiry, a Show Cause Notice was issued on 27.09.2017 to the appellant, for absolute confiscation of the seized gold along with the f....
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....sion of this Tribunal in the case of Ajit Bhosle reported in 2020 (374) E.L.T. 814 (Tri. - Kolkata) 6.3. He also relied on the decision of this Tribunal in the case of R.K. Swami Singh reported in 2024 (18) Centax 459 (Tri. - Kol.), wherein, in respect of gold biscuits which were not having foreign marking and tested to have a purity of 995 mille, intercepted at the outskirts of Imphal from a person travelling in a van, who was not having any document for licit importation, and where the seizure was under "reasonable belief" that the foreign origin gold was smuggled into India without Customs duty payment, it was held that the said gold was not standard foreign origin gold, which normally bears a purity of 999.9 mille and that the Seizure was at Imphal, far away from Indo-Myanmar international border; it was also observed therein that there was no document on record to establish that the gold bars/pieces were smuggled into India without Customs duty payment and there was no evidence to counter the intercepted person's claim that the gold was domestically purchased by his father and thus inherited to him; therefore, it was held that there was no "reasonable belief" on which it wa....
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....reign currency cannot lead to the fact that the foreign currency is a smuggled one and therefore, absolute confiscation of the same is bad. 6.9. The appellant also relied on the decision in the case of Gurumukh Singh v. Union of India & ors. [1984 (18) E.L.T. 274 (P&H)] to argue that there should be a reasonable belief and not a 'suspicion' to seize Indian currency. Accordingly, the appellant contends the seizure of the currency during the course of investigation is illegal. 6.10. In view of these submissions, the Ld. Counsel for the appellant submitted that the gold in question, the Hyundai i10 Car. along with the said Foreign and Indian currency are not liable for confiscation and are to be released to the appellant. Accordingly, he prays that no penalties be imposed on the appellant. 7. On the other hand, the Ld. Authorized Representative of the Revenue submitted that at the time of interception, the appellant was not having any licit document for procurement of the gold in question. Moreover, he submits that the purity of the gold as per M/s. G.N. Hallmarking & Refinery Pvt. Ltd., Kolkata is '24 carat gold of foreign origin'. Further, contending that the appellant has ....
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....me of M/s. Ketan Jewellers. In view of the above, coupled with his own admissions, it is indisputable that the ownership of the said vehicle was held by Sri Basant Kumar Soni." 10.2. It is also an admitted fact that there is no foreign marking on the gold in question. 11. Therefore, the question that arises is whether, in such circumstances, there is reasonable belief to seize the said gold or not. 12. We find that the said issue has been examined by this Tribunal in the case of Ajit Bhosle (supra) wherein it has been held in respect of seizure of gold in cut pieces, having no marking and of different purity, from melting house, that since gold is freely imported in country and abundantly available in the market, it cannot be held that the seized gold is a smuggled one, which creates doubt and suspicion on the investigating authority. 12.1. Further, in the case of R.K. Swami Singh (supra), the appellant had been intercepted at the outskirts of Imphal, testing showed purity of gold as 995.2 mille, which had no foreign marking; the appellant therein was not having any documents for licit importation, and confiscation of gold was ordered under "reasonable belief" that fore....
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....at the gold in question is not having any foreign marking. The appellant has produced evidence of procurement of the said gold in question by way of an Affidavit executed by the mother of the appellant and the Wasiyatnama dated 28.02.2006. In view of these facts, we find that the appellant has been able to explain the source of procurement of the gold in question, which has been inherited from the appellant's mother through Wasiyatnama, and who, in turn, has given the said gold to the appellant after converting her jewellery into gold. 13. In these circumstances, we hold that the gold in question cannot be absolutely confiscated. 13.1. The Ld. Authorized Representative of the Revenue has heavily relied on the decision of the Hon'ble High Court in the case of Shri Rajendra Kumar Damani (supra) wherein the Hon'ble High Court had consciously recorded the fact that the respondent in that case had taken the plea that the gold bar was made of old gold jewellery purchased in cash, which was found to be a very faint plea raised by the respondent thereon and other co-noticees. Admittedly, no such plea has been taken by the appellant herein in this case. We observe that in support of h....
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.... The Department, it seems, has given up the story of foreign currency. As there was no effective interrogation till now, the accused is sent to J/C till 07-04-2017 with liberty to the Department to interrogate him there and to record any statement which he may make. The Superintendent of Correctional Home is requested to keep a check on the heath and diet of the accused on day to day basis. It is made clear that if Professor Doctor Pahari deems it fit to examine the accused the I.O shall cause the latter to be produced before him. It is stated by the Ld. Prosecutor that no statement from the mother of the accused has been recorded till this date. A copy of this order be supplied to the Ld. Prosecutor." 14.2. It is also observed that further investigation has failed to establish or reveal that the gold in question is of foreign origin or smuggled in nature. 15. Therefore, in these circumstances, we hold that the gold in question cannot be confiscated. 16. We further take note of the fact that in this case, foreign currency recovered from the possession of the appellant has been seized on the allegation that the same was also smuggled i....