TaxTMI 
TaxTMI 
2025 (11) TMI 1367
X X X X Extracts X X X X
X X X X Extracts X X X X
....22 dated 28.06.2022 passed by the Commissioner of Customs (Prev.), W.B. Custom House, 15/1, Strand Road, Kolkata-700001, wherein the Ld. Commissioner of Customs (preventive), Kolkata has imposed a penalty of Rs.1,40,000/- on Shri Bapi Das (appellant 1 herein), a penalty of Rs.2,20,000/- on Ranaji Manna, (Appellant 2 herein) and a penalty of Rs.9,75,000/- on Shri Dipak Maharaj (Appellant 3 herein), all under Section 112(b) of the Customs Act, 1962. All the three appellants have filed these appeals against the penalties imposed on them in the impugned order. Appellant no 2, Dipak Maharaj has filed appeal against confiscation of gold weighing 953.100 grams from his possession. 2. The facts of the case are that on 17.10.2020 a search operati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lants were not able to produce any documents for the licit purchase of the gold bars in question. On adjudication, the Ld. adjudicating authority interalia confiscated the gold weighing 953.100 grams recovered from the appellant 2 Shri. Dipak Maharaj and the Indian currency notes totally amounting to Rs.85,17,250/- recovered from all the three appellants. 3. In respect of the Indian Currency amounting to Rs. 14,00,000/- seized from the personal possession of Shri Bapi Das, he claimed that the seized cash belonged to his employer namely Shri Surojit Halder (One of the Director of M/s Surya Narayan Forex Pvt. Ltd.). Shri. Surojit Holder informed that he has entrusted the amount to Bapi Das, his employee for depositing the same at the ICICI....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere legitimate proceeds of sale rather than contraband entrusted by an employer. 3.3. The appellant has relied upon the decision of the Tribunal Delhi in the case of Ramachandra Vs Commissioner of Customs, reported in 1992(60) ELT 277 (Tri-Del), wherein it has been categorically held that before seizing the Indian Currency it must be established that the currency seized is related to sale proceeds of the smuggled gold. As the department could not establish that the Indian Currency seized was sale proceeds of smuggled gold, they prayed for release of the Indian Currencies seized from them. 3.4. The appellant submits that the impugned order is fundamentally flawed as the search operation carried out was a town seizure carried out in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oner of Customs, reported in 1992(60) ELT 277 (Tri-Del), wherein it has been categorically held that before seizing the Indian Currency it must be established that the currency seized is related to sale proceeds of the smuggled gold. The relevant part of the said decision is reproduced below: 5. It is also seen that the charges under the Gold (Control) Act has been dropped against all the persons to whom show cause notice has been issued and the charges under the Customs Act has been dropped against the other two. It would appear that the penalty of Rs. 50,000/-on the appellant has been imposed for breach of Section 121 of the Customs Act. Before violation of Section 121 is established the following ingredients must be satisfied: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d order. 6.2. Regarding the currency seized from Shri Dipak Maharaj (Director of Siya Forex & Travels Pvt. Ltd), he has submitted a formal representation dated 17.11.2020 (and a reminder on 07.07.2021), praying for the release of the seized gold and cash, by submitting all relevant documentation to the adjudicating authority. He submitted notarized Gift Deeds dated 2nd April 2019 and 4th April 2019 for the gold ornaments, Trade License, GST and Money Exchange registrations, PAN details of M/s. Siya Forex & Travels Pvt. Ltd, Company Balance Sheet and Trial Balance Sheet as on 31st March 2020, Cash-in-hand ledger entries, and ICICI Bank deposit advice establishing that the gold bars were legitimately transferred from family gifted ornament....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the provisions of section 123 of Customs Act are not applicable in this case. The responsibility is on the department to establish that the gold seized from him was smuggled in nature. As the department has failed to establish that the gold was smuggled in nature, we hold that the confiscation of the said gold in the impugned order is not sustainable. Further, we find that the appellant 2 has submitted enough evidence to establish that the 953.100 grams found in his possession was legally procured and they submitted documentary evidences for licit purchase of the same. Accordingly, we set aside the confiscation of gold, qua seized from appellant 2. 6.5. We find that penalties to the tune of Rs. 1,40,000/- was imposed upon Shri Bapi D....