TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 1462
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....collectively valued at Rs. 81,54,200/- only, as detailed in the Inventory List/Seizure Memo vide Seizure Case No. : 28/IMP/CL/GOLD/ P&I/CC[P]/ WB/2014-15, Dated: 19.02.2015 in terms of Section 111(b) & Section 111(d) of the Customs Act, 1962. [21.02] I impose "Personal Penalty" of Rs. 4,00,000/[Rupees Four Lakh] only upon the Noticee No. 1. Shri Purnanand Mishra of Nagpur (Carrier of gold), under Section 112(b) of the Customs Act, 1962 considering his profession and for his omission and commission, as discussed herein above. [21.03] 1 impose "Personal Penalty" of Rs. 10,000/[Rupees Ten Thousand] only upon the Noticee No. 2, Shri Nagendra Hiralal Tiwari of Nagpur [accompanied with Carrier of gold), under Section 112(b) of the Customs Act, 1962 considering his profession and for his omission and commission, as discussed herein above. [21.04] 1 refrain from imposing "Personal Penalty" upon the Noticee No. 3, Shri Anand Navalchand Pugaliya of Nagpur so proposed in the SCN, dated: 11.02.2016, under Section 112 (b) of the Customs Act, 1962 according to the "Investigation Report" dated: 15.07.2015 of the Superintendent of Nagpur Commissionerate. [21.05] 1 refrain from imposing "Pe....
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....Hiralal Tiwari at Howrah Railway Station on 19.02.2015. The Appellant was found to be in possession of three pieces of gold bars each weighing one kg, totally weighing 3,000 grams, valued Rs. 81,54,200/- allegedly of foreign origin, having inscription 'VALCAMBI SUISSE', secreted in his shoes, without having any documents for the licit purchase of the same. The said gold were seized under Section 110 of the Customs Act, 1962, on the reasonable belief that they were smuggled into India. Samples were drawn from the seized gold and sent to CRCL, Kolkata to check the purity of the gold. The Report dated 30.09.2015 received from CRCL confirmed the purity of the seized gold as 99.5%. 4. In his statement dated 19.02.2015, the Appellant stated that he has purchased the gold from One Mr. Dilip, an employee of Mr. Anurag Jalan of Jalan Arcade, Kolkata. He has to hand over the gold to Mr. Neelam Pannalal Lunawat Jain and Mr. Anand Navalchand Pugaliya of Nagpur. 5. The Commissioner of Customs, Kolkata issued a Show Cause Notice dated 11.02.2016 under Section 110(2) of the Customs Act, 1962. The said Notice was adjudicated vide impugned order and the gold was confiscated along with var....
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....on in the case of Commissioner of Customs (Preventive) v. Puni Dhapa Lokeswara Rao [2009 (248) E.L.T. 141 (cal.)] wherein it has been held that circumstantial evidences are required to establish the guilt of the appellant. In this case, the appellant has procured the gold in a licit manner and submitted copy of the cash memos of the seller of the gold, who has accepted that he has sold the said gold. Thus, the appellant contended that they had discharged the burden of proof under Section 123 of the Customs Act. Accordingly, he submits that the onus shifts to the Department to establish that the gold seized from the appellant was smuggled into India. The appellant submits that smuggling of gold cannot be confirmed on the basis of presumptions, assumptions and surmises. In support of this contention, the appellant relied on the following decisions: - * Sitaram Sao v. State of Jharkhand - 2007 (12) SCC 630. * Mridul Agarwal v. Commissioner of Customs, Lucknow, 2018 (362) E.L.T. 847 (Tri. All.) * Shantilal Mehta v. UOI and Others, 1983 (14) E.L.T. 1715 (Del.). * CCC (P) v. Prabhash Kumar Jalan, CESTAT, Kolkata Bench, Final Order No. 75500/2021, dated 27-8-2021. * Shri Sarvend....
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....ny goods are sized, the show cause notice has to be issued within 6 months from the date of seizure, as provided in Section 124 of Customs Act. In this case, the seizure of the gold was effected on 19/02/2015 and accordingly, the Notice must have been issued on or before 18/08/2015. As the investigation could not be completed within the six months time period, the officers sought extension of time, for a further period of six months, which was granted by the Commissioner Customs (Preventive). However, the extension of time granted by the Commissioner of Customs (Preventive) was not communicated to them before expiry of the six-month period as envisaged in proviso to Section 110(2) of Customs Act, 1962. The appellant submits that the extension for issue of the Show Cause Notice beyond six months under Section 110(2) of the Customs Act, 1962 was obtained from the Commissioner on 17.08.2015 and the letter was delivered to them only on 27.08.2015. Accordingly, he submitted that the notice issued on 05.08.2017 was beyond the period of six months and hence, is liable to be set aside on the ground of limitation. In this regard the appellant referred Section 153 of the Customs Act, and sub....
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....e of service of Notices and orders. For the sake of ready reference the relevant provisions of Section 153 are reproduced below: Section 153. Modes for service of notice, order, etc.- (a)--------------------------------------------------------- (b) by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorised representative, if any, at his last known place of business or residence; (c) --------------------------------------------------------------- (d) ---------------------------------------------------------------- (e) ------------------------------------------------------------------------ (2) Every order, decision, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed or uploaded in the manner provided in sub-section (1). (3) When such order, decision, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.] 10.4. ....
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.....2015. Thus, it is seen that the extension order was not served within the stipulated time limit. Accordingly, we hold that the objection raised by the appellant is sustained. 10.8. In view of the above discussion, we hold that the order was not issued within the stipulated timelimit. Accordingly, we hold that the SCN issued beyond the period of six months is not sustainable and the impugned order passed is liable to be set aside on this ground alone. 11. Regarding the merits of the issue, we observe that the following questions need to be answered: - (1) Whether the evidences available on record indicate that the gold were of foreign origin and smuggled into India? (2) Whether the appellant has produced documentary evidence to substantiate their claim that the gold were locally purchased from domestic sellers? (3) Whether the provisions of Section 123 of the Customs Act, 1962 are applicable to the present case? (4) Whether the provisions of Section 138 B of the Customs Act, 1962 has been followed to rely upon the statements recorded? (5) Whether the statement recorded from the appellant alone is sufficient to confiscate the seized gold? (6) Whether penalty is liable ....
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.... nature - Possessor of such gold cannot be made to discharge onus under Section 123 of Customs Act, 1962 - Order permitting redemption of seized gold rods on payment of fine and reducing quantum of penalty not interfered with - Sections 111, 112 and 125 of Customs Act, 1962. [paras 5, 6] 12.3 Thus, we hold that the evidence available on record does not indicate that the seized gold were of foreign origin. Accordingly, answer to question No. (1) raised in paragraph 11 is in the negative. (2) Whether the appellant has produced documentary evidence to substantiate their claim that the gold were locally purchased from domestic sellers? 13. The appellant has claimed that they have purchased the gold from M/s. Vir Gems, Mumbai and submitted a tax invoice bearing No. 014/Jan/201415 dated 31.01.2015; Directors of M/s. Vir Gems were summoned; however, they have not appeared before the Customs Officers in response to the summons. M/s. Vir Gems have written a letter dated 19.12.2015 wherein they have accepted the sale of the said gold to the appellant through the invoice dated 31.01.2015. Later, they have further informed that such gold was purchased from local sellers. 13.1 We find that....
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.... Department is that in the instant case, the onus of proving that the gold biscuits seized were not of smuggled in nature, lies on the Appellant. In the present case, we observe that the appellant has submitted documentary evidence to substantiate their claim that they have purchased the said gold from domestic sellers and submitted copy of invoices evidencing domestic purchase. There is no evidence available on record to establish that the gold seized was of foreign origin or smuggled in nature. Accordingly, we hold that the provisions of Section 123 of the Act is not applicable to the present case. Accordingly, answer to question No. (3) raised in paragraph 11 is in the negative. (4) Whether the provisions of Section 138B of the Customs Act, 1962 has been followed to rely upon the statements recorded? (5) Whether the statement recorded from the appellant alone is sufficient to confiscate the seized gold? 15. The appellant submits that Adjudicating Authority has not followed the provisions of Section 138 B of the Customs Act, 1962 and hence the statements recorded cannot be relied upon in this case. The Appellant submits that as per Section 138B, the adjudicating authority sh....
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....with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a coaccused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The Appellant is therefore entitled to be acquitted of the charges levelled against him." 15.3. The appellant submits that the adjudicating authority has held that the gold is of foreign origin and liable for confiscation as per Section 111 of the Customs Act, only on the basis of the Statement dated 19.02.2015 given by the appellant. In his statement dated 19.02.2015, the Appellant stated that he has purchased the gold from One Mr. Dilip, an employee of Mr. Anurag Jalan of Jalan Arcade, Kolkata. He has to hand over the gold to Mr. Neelam Pannalal Lunawat Jain and Mr.Anand Navalchand Pugaliya of Nagpur. Later, the appellant changed his stand and claimed that the gold was purchase....