TaxTMI 
TaxTMI 
2025 (8) TMI 898
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....nt Shri Goutham Kumar Rawal and appellant Shri Pukhraj Jain under Section 112(a) and 112(b) of the Customs Act 1962 and on the appellant Praveen O under Section 112(a) and 112(b) of the Customs Act, 1962 order was modified by the Commissioner (Appeals) vide Order-in-Appeal dated 22.06.2020 wherein Learned Commissioner reduced to Rs. 30,000/- (Thirty Thousand only) in the case of appellant Shri O. Praveen and Rs. 2 lakhs in the case of appellant Shri Pukhraj Jain. 2. Aggrieved by the impugned order, the appellants filed these appeals before CESTAT. 3. Facts of the case, in brief, are that the Officer of DRI having specific intelligence that two passengers travelling by Train No. 12514 from Gowahati to Secunderabad via Visakhapatnam, where smuggling gold of foreign origin, intercepted the appellant Shri Ghevar Ram and the appellant Shri Praveen O and questioned whether they were carrying any smuggled gold for which they replied in negative. Later, they admitted that they were in possession of smuggled gold biscuit kept in the pockets of their white colour cotton waist. Later, they were taken to the DRI Office to conduct the proceedings. Appellant Ghevar Ram stated that he was c....
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....s the gold was available at cheaper rates and they can make profits on the same. He further stated that the amount was paid to the supplier of the gold by Shri Goutham Kumar Rawal at Hyderabad before procurement of the gold. 8. Appellant Shri Goutham Kumar Rawal in his statement dated 09.01.2019 stated that he is the proprietor of M/s DK Jewellers and M/s Kushi Bullion in Secunderabad. He stated that he and Shri Pukhraj Jain planned to procure the gold from Gowahati as the gold was available at cheaper rates and they can make profits on the same. He further stated that the amount was paid to the supplier of the gold by him on 02.01.2019 at Hyderabad before procurement of the gold. 9. Learned Counsel for the Appellants stated in brief that the impugned order passed by the Lower Authorities is contrary to the provisions of Customs Act, 1962, as well as against principles of natural justice. There are serious irregularities, illegalities and discrepancies in the impugned order. The present case is town seizure and it is settled law that in such cases, the value of confiscated goods includes the duty component at the time of inspection is not known to determine the exchange rate ....
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....documents were not considered by them. The Department ought to have gone into the root of the case and to approach Shri Sagar at Guwahati from whom the appellants have allegedly procured the gold. The Department could have checked with Shri Sagar, whether the gold was legally imported or not. 11. Learned AR submits that when the goods were seized from the possession of the Appellant Shri Ghevar Ram and appellant Shri Praveen O, they did not have any documents/invoices regarding the gold. The proper Officer had reasons to believe that the gold was smuggled since they failed to produce any documents/invoices. In these circumstances, burden of proof lies on the person, who claims that the gold has been legally acquired. The appellant Shri Ghevar Ram and Praveen O did not have any documents/invoices at the time of seizure, even appellant Shri Pukhraj Jain and the appellant Shri Goutham Kumar Rawal failed to prove their ownership as required by Section 123 of the Customs Act. Learned AR relied on Hon'ble Kerala High Court judgment in the case of Commissioner of Customs, Keral Vs Om Prakash khatri [2019 (3) TMI 457 Kerala HC] in which Hon'ble High Court held that a reading of Section ....
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..... It is also important that Shri Sagar, Guwahati stated that foreign markings were erased by hammering then how is it possible that the said foreign markings are still present on seized gold. Department did not produce either the seized gold inspite of appellants request, as the Customs Authorities had already disposed of the confiscated gold during pendency of the case or any other evidence to suggest that such disposed gold was marked with foreign markings. 15. The appellant Shri Ghevar Ram and Praveen O stated in their statements that Shri Sagar in Guwahati, Assam at the time of delivery told them that all the foreign markings on the biscuits were erased by hitting a hammer. Department has not interrogated Shri Sagar, who was supplier of the seized gold. It is also important to mention that no such statement is present in the Punchanama. If any such type of statement has been given by Shri Sagar in Guwahati and if such hammering was found on the seized gold then it should be in the report of assayer/valuer. It is also an important fact that inspite of specific name and address, Department did not try to interrogate Shri Sagar, which creates a doubt on the part of the Departme....
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.... (32) ELT 355 (A.P.)], wherein, it was held that merely because the goods were seized in Visakhapatnam Town, it cannot be assumed that the goods in question have been imported into India in contravention of the provision of Customs Act. ii) Commissioner of Central Excise, Indore Vs Tokyo Electronics [2007 (212) ELT 86 (Tri-Del)], wherein, it was held that goods were neither prohibited nor notified under Section 123 of the Customs Act, 1962. Goods were freely importable under Open General Licence and also freely available in open market. Revenue failed to conclusively prove that goods were smuggled by respondents. In the absence of any conclusive evidence as to involvement of respondents in smuggling activity, no infirmity in impugned order setting aside the confiscation. iii) Commissioner of Customs Vs Monoranjan Bainik [2004 (165) ELT 237], wherein, it was held that mere fact that goods were admitted to be of foreign origin does not ipso facto lead to inevitable conclusion that the same are of smuggled character. Smuggled nature of goods to be proved by Revenue by producing affirmative and tangible evidence. Assumption and presumption that goods are seized from the area which is a....
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....am to enquire about the gold. They decided to procure around 3.5 kgs gold from Shri Sagar at Gowahati and paid Rs. 1 crore to the supplier of smuggled gold. 17. Learned Commissioner (Appeals) observed that there is no dispute that the appellant Shri Praveen O is the employee of the appellant Shri Pukhraj Jain and the appellant Shri Ghevar Ram is the employee of the appellant Shri Goutham Kumar Rawal. The statement of the appellant Shri Pukhraj Jain and appellant Shri Goutham Kumar Rawal reflect that a total of Rs. 1 crore was invested by both of them, out of which Rs. 35 lakhs is of the appellant Shri Pukhraj Jain and Rs. 65 lakhs is of the appellant Shri Goutham Kumar Rawal. In other words, the investment of the appellant Shri Pukhraj Jain and the appellant Shri Goutham Kumar Rawal is in the ratio of 3.5:6.5. The quantity of gold seized from possession of the appellant Shri Praveen O is 7 gold biscuits (1160 gms) and quantity of gold seized from the possession of appellant Shri Ghevar Ram is 13 gold biscuits (2154 gms) are also in the ratio of 3.5:6.5, which is the ratio of investment by their respective employers as mentioned above. Statements given by the appellant Shri Pukhr....
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....ourt on an analysis of the facts found that the onus was not duly discharged and held that though the burden on the petitioners was not as high as on the prosecution but there must be preponderance of probabilities. Co-ordinate Bench, Kolkatta in the case of Srikant T Mehta Vs Commissioner of Customs (Preventive) [1992 (61) ELT 615 (Tri-Kol)] held that it is a well established principle that where the burden of proof lies upon the appellants then he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. It is sufficient in this case, that the appellant succeeds in proving a preponderance of probability in favour of his case. Therefore, the appellant Shri Pukhraj Jain and the appellant Shri Goutham Kumar Rawal proved their onus as required by Section 123 of the Customs Act, 1962. 20. Learned Adjudicating Authority had allowed application for cross examination of the Punch witnesses, but they did not turn up for cross- examination. Learned Commissioner (Appeals) observed that however, the Punch witness expressed their inability to appear because of some urgent personal work. It is not sufficient ground to deny their right to cross e....