TaxTMI 
TaxTMI 
2025 (6) TMI 1852
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....ile he was travelling from Guwahati to Howrah via Saraighat Express Train (12346 DN). 2.1. Upon search, Sk. Amjad Ali was found to be in possession of 06 (six) pieces of gold bars, collectively weighing 499.17 grams. The above detected gold bars were taken to M/s. J.M. Assaying Testing Refinery, H.B. Road, Masjid Gali, Fancy Bazar, Guwahati wherein it was found that the 06 (six) pieces of gold bars were of 99.5% average purity, of 23.9 karat. The said gold bars were subsequently handed over to the Anti-Smuggling Unit, Customs Division, Guwahati for taking further necessary action under the Customs Act, 1962. 2.2. Samples were thereafter drawn from the said gold bars and testing of the same was done through the Senior Quality Control Officer, Assam Hallmarking Centre, Government of Assam, who confirmed the purity of the said six pieces of gold bars as "996.6, 996.1, 997.1, 996.8, 996.7 and 996.6 of 23.9 karat". 3. Considering that the said Sk. Amjad Ali was not having any valid documents to prove licit purchase of the said gold bars, the same were seized under the belief that the same had been smuggled into India without payment of appropriate duties of Customs. 4. On co....
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....y in the normal course of their business. It is also submitted that such transfer of gold depends upon their requirement and it is purely a business arrangement. 7.2. It is also pointed out by the Ld. Counsel for the appellant that the appellant is having valid documents for purchase of the said gold and have produced tax invoices in respect of purchase of the said gold bars from M/s. Nirmala Trading Co., Kolkata. It is thus the appellant's contention that he has been able to produce sufficient documentary evidence to prove licit purchase of the gold in question. In this regard, it is submitted that Sk. Amjad Ali was the employee of the appellant, who was carrying the gold from Kolkata to Guwahati to their own unit for the purpose of transferring gold jewellery in the normal course of business; that he was having documentary proof at the time of seizure of the gold, but the Departmental officers have not taken cognizance of the said documents. 7.3. Further, the appellant claims that at the time of seizure itself, Sk. Amjad Ali had categorically informed that the said gold belonged to their Kolkata unit and he was carrying the same to their unit in Guwahati. In this regard, th....
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....nd was only being transported internally between two branches, in the course of legitimate business. 7.8. In view of the above submissions, the appellant prays for setting aside the order of confiscation of the gold in question and imposition of penalty on the appellant, and thus to allow their appeal. 8. On the other hand, the Ld. Authorized Representative of the Revenue submits that the gold was seized from Sk. Amjad Ali and he was not having the valid documents to show legal procurement of the gold at the time of seizure. Hence, he contends that the gold has been rightly confiscated by the ld. adjudicating authority and penalties have also therefore been correctly imposed. 8.1. It is also his contention that the documents submitted by the appellant are not matching with the gold seized in this case and therefore, the evidence submitted by the appellant does not necessarily indicate that the gold in question has been procured from domestic sources. 8.2. In support of his contentions, the Ld. Authorized Representative of the Revenue placed reliance on the following case-laws: - (i) State of Gujarat v. Shri Mohanlal Jitamalji Porwal & anr. [1987 (29) E.L.T. 483....
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....e evidence. In this case, I find that no such corroborative evidence adduced by the Department. 11.2. In this regard, I find that this view is supported by the decision of the Tribunal in the case of Ram Naresh Chaurasiya v. Commissioner of Customs (Prev.), Patna [2019 (365) ELT 940 (Tri. - Kol.)] cited by the appellant in support of his contentions. The relevant paragraph of the above said order is reproduced below: - "18. I find that there is no dispute with the said two Gold Bars recovered from the residential premises owned by the appellant's father and the appellant and his brother Shri Harish Kumar Chaurasia were residing along with their respective families in the said premises. There is no dispute that the said gold bars did not have any foreign marking. No further investigation has been made by the Department thereafter. Thus, the department could not adduce any evidence whatsoever to prove that the said two gold bars were smuggled in the two countries. Therefore, the presumption regarding the smuggled nature of seized gold under Section 123 of the Customs Act, is not invocable." 11.3. I also find that a similar view has been expressed in the case of Nand Ki....
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....eized goods cannot be considered to be of foreign origin. 6. Regarding applicability of Section 123 of the Customs Act, 1962 it is relevant to go through the provisions of this Section reproduced below. "Section 123. Burden of proof in certain cases. - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) In a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other 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....
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....e weight of all the sixteen pieces of gold. The standard 10 tola bars weigh 116.640 gms., and as such, the total weight of 16 pieces of biscuits would come to 1866.240 gms., which is reflected in the sale voucher of M/s. Chauhan Zevares. Similarly, it is a matter of common knowledge that the standard purity of gold is 999.00. As such, as rightly contended by the learned consultant, the small variation in the weight or in the purity of gold is attributable to the human error and cannot be made the basis for rejecting the sale voucher of M/s. Chauhan Zevares who have admitted to have sold the goods to the appellants. This has also been observed by the Commissioner that M/s. Chauhan 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 ....
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....on case law in the case of foreign marked gold also it was held by this Bench that appellant has discharged the onus when the bills covering the foreign marked gold bars are furnished. In the present case the seized gold bars do not bear foreign markings, do not have uniform weight/purity and appellant has shown the purchase bills covering the said gold bars having assorted size, weight and purity. The person who sold the seized goods has also confirmed to have supplied the same to Shri Nand Kishore Somani. In his statement, reproduced in Para (23) on Page 16 of the Order-in-Original dated 6-2-2014, Shri Ajay Kr. Saraff of M/s. Saraff Jewellers has confirmed to have supplied the gold bars made out of jewellery, 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 hows....
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....ppellants are not required to discharge their obligation under Section 123 of the Customs Act, 1962. Moreover, the Appellant No.(4) has claimed to be the owner of the gold in question and the said owner has shown the invoices for procurement of the said gold by producing his profit and loss account, balance sheet, income tax return and payment of GST on the said gold in question. In that circumstances, the gold in question is not liable for confiscation. 7. In view of this, we hold that the confiscation of gold in question is not sustainable. As we hold that the gold in question is not liable for confiscation and the same is to be released to the Appellant No.(4). Further, as the gold in question is not liable for confiscation, no penalties are imposable on the Appellants. Hence, the vehicle in question is also required to be released to the Appellant No.(1)." 15.1. It is also relevant to refer to the decision rendered by the Tribunal in the case of Prahlad Kumar Das v. Commissioner of Customs (Prev.), NER, Shillong [Final Order No. 75054 of 2025 dated 15.01.2025 in Customs Appeal No. 75449 of 2023 - CESTAT, Kolkata], wherein the Tribunal observed that: - "13. ....
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.... support the domestic purchase of the gold. However, in this case, it is on record that the appellant is a goldsmith and he had purchased gold from M/s Nirmala Trading Co, Kolkata, on two dates i.e., 13th February, 2019 and 27th February, 2019 and thereafter, all the gold purchased were melted and formed into 12 gold bars, for which the appellant has also produced documentary evidence. 17. Moreover, I observe that in the present case, out of the above 12 gold bars, 6 gold bars were given to local gold artisans for the purpose of making gold jewellery and other 6 gold bars were sent to the Guwahati shop owned by the appellant, which were being brought back to Kolkata. The appellant in this case, claims that it is a case of transfer of gold from one unit of the appellant to the other unit, i.e., from Kolkata to Guwahati and vice versa, which is purely an internal mechanism. In this regard, I am of the view that minor variations in the statements of the employee at the time of his interception cannot be a reason to disregard the documentary evidence of domestic purchase submitted by the appellant. It may also be relevant to observe that the employee may not be having the full infor....
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....7 AN- AAKFN 6395D MOB: 98313 48381 Phone-033 2258 1600 GSTIN/UIN: 19AAKFN6395D1ZU State Name : West Bengal. Code : 19 Buyer MALLICK JEWELLERY MUKUNDAPUR MASAT HOOGHLY GSTIN/UIN State Name : 19BMAPM9233N1ZI : West Bengal, Code : 19 Terms of Delivery BAR NO- CUT PICES SI Description of Goods No HSN/SAC Quantity Rate per Amount 1 GOLD -9950 Batch : K 174100 71080000 499.705 GMS 499.705 GMS 3,283.49 GMS 16,40,776.70 % 24,611.65 1.50 % SGST @1.5% [email protected]% 1.50 1 Rs. 16,90,000.00 499.705 GMS E. & O.E Amount Chargeable (in words) Indian Rupees Sixteen Lakh Ninety Thousand Only Indian HSN/SAC Taxable Central Tax State Tax Total Value Rate Amount Rate Amount Tax Amount 71080000 16,40,776.70 1.50% 24,611.65 1,50% 24,611.65 49,223.30 Total 16,40,776.70 24,611.65 24,611.65 49,223.30 Indian Tax Amount (in words) : Indian Rupees Forty Nine Thousand Two Hundred Twenty Three and Thirty paise Only Company's Bank Details STATE BANK OF INDIA Bank Name 33652892551 A/c No. : 19362753068 Branch & IFS Code: Burrabazar Kolkata & SBIND000050 Company's VAT TIN Company's PAN Declaration for NIRMALA TRADING CO (2012,78)....