AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 1291
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....eized from him and the penalty imposed on him. 1.3. Customs Appeal No.C/75211/2025 has been filed by Mr. Tirlok Singh, wherein he prayed for setting aside the absolute confiscation of the gold seized from him and the penalty imposed on him. 1.4. All the three appeals emanate from the same Order-in-Appeal dated 27.12.2024 and hence they are taken up together for decision by a common order. 2. The facts of the case are that on the basis of intelligence that three person by name Sh. Tirlok Singh, Sh. Geetanshu Aggarwal and Sh. Dharmender Kumar Jha (herein after referred as the appellants), were carrying huge quantity of smuggled gold from Bangladesh to Delhi via 12301 Howrah-New Delhi Rajdhani Express, scheduled to leave Howrah station at 16.50 hours, the officers of Directorate of Revenue Intelligence (DRI) intercepted them at Howrah Station. The first two persons mentioned above were scheduled to travel in coach A3 and Shri. Dharmender Jha was scheduled to travel in coach A5. 2.1. On their personal search, total 15 pieces of rectangular shaped yellow colour metallic bar, biscuits and cut pieces weighing 3152.900 grams, valued at Rs. 1,66,31,547/- believed to be of gold p....
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....and [email protected] wherein two identical letters dated 20.04.2022 purportedly signed by Shri Tirlok Singh and Shri Dharmender Jha respectively were attached. In the said letters Shri Tirlok Singh and Shri Dharmender Jha, inter alia stated that the seized gold is their ancestral property and they had taken the gold to Kolkata for making ornaments. As they could not get the proper jewellery and design of ornaments, the gold as such was brought back and the same was seized on 16.03.2022 by DRI officers. They emphasized that the seized gold is of lndian origin and requested that seized gold may be not disposed. 2.9. The appellants Shri. Tirlok Singh vide Prisoner's Petition dt. 23.03.2022 addressed to Hon'ble Chief Metropolitan Magistrate, Calcutta through Superintendent, Jail wherein it was submitted that he is not involved in any smuggling activity, gold seized from him is of Indian origin and not smuggled in nature. The statements recorded from him was under threat, coercion which is not at all voluntary in nature . 2.10. On completion of the investigation, a SCN dated 30.08.2022 was issued to the appellants proposing confiscation of the seized gold and imposition of pen....
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....2 without giving credence to the retractions dt. 23.03.2022 & 20.04.2022. The statements dt. 16.03.2022 and 17.03.2022 of appellant were recorded under threat and coercion by the department and same was retracted. The Ld. Adjudicating Authority failed to appreciate the submissions of appellant dt. 23.03.2022 made vide Prisoner's Petition dt. 23.03.2022 addressed to Hon'ble Chief Metropolitan Magistrate, Calcutta through Superintendent, Jail wherein it was submitted that he is not involved in any smuggling activity; gold seized from him is of Indian origin and not smuggled in nature; the statements recorded from him were not voluntary and they were forcefully recorded. 3.4. The appellant submits that pursuant to order dt. 17.03.2022 of the Hon'ble Chief Metropolitan Magistrate, Bankshall, Calcutta, the DRI officials visited the Presidency Correctional Home on 21.03.2022 for interrogation and recording of their statement; the appellant tendered his voluntary statement, however, the DRI have forced him to change his version of statement which he did not and hence the statement so tendered by the petitioner was not recorded by the DRI.. 3.5. The appellant submits that the Order-i....
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....a notified item under Section 123 of Customs Act, 1962. Hence, Burden of proof in case of notified goods is upon the person from whose possession the gold is seized. The burden is on the person who claims ownership of gold to prove that the seized gold is not smuggled in nature. However, Revenue should be able to establish reasonable belief that goods seized under Section 110 ibid were smuggled goods. 3.10. The Tribunal in the cases of Balanagu Naga Venkata Raghavendra Vs. Commissioner of Custom 2021 (378) ELT 493 (T) held that there neither being any admittance of smuggling nor any foreign marks on recovered gold to indicate that same of foreign origin, department could not have formed a reasonable belief as per Section 123 of Customs Act, 1962 that gold was smuggled one so as to shift burden of proof upon appellants under aforesaid section, particularly when appellant's statements recorded by Department contradictory and purity of seized gold not as such that same to be considered as of foreign origin gold. 3.11. In the case of Aadil Majeed Banday Vs. Commissioner of Customs 2021 (378) ELT 540 (T) it has been held that the appellant never travelled from abroad to India, but....
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.... by him. Accordingly, he prayed for setting aside the absolute confiscation of the gold seized from him and the penalty imposed on him. 3.14. The appellant Shri. Dharmender Kumar Jha submitted that gold weighing 872.910 gram valued at Rs. 46,04,600/- was seized from him on 16.03.2022 in Train No. 12301 - Howrah New Delhi Rajdhani Express by DRI officials, Kolkata on the reasonable belief that same were smuggled into India from Bangladesh in contravention of provisions of Customs Act and liable for confiscation under Customs Act. In this regard, the appellant submitted that vide mail dt. 20.04.2022, he has informed DRI officials that the seized gold was their ancestral property and he carried the impugned gold to Kolkata for making ornaments. The impugned gold weighing 872.910 gram, 24 carat was given by his grandfather Sh. Nikunta Jha to his father Sh. Makeshar Jha. The appellant's father gave the impugned gold to appellant for making ornaments for distribution among his children. To this effect the appellant has filed an affidavit dt. 10.07.2023 before the Ld. Adjudicating Authority. However, no finding has been given in the impugned order against the claim made by him in the i....
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....t having any documents in support of the licit purchase of the gold seized from their possession. We observe that the lower authorities have passed the impugned orders by relying upon initial statements of appellants dt. 16.03.2022/17.03.2022 without giving credence to the retractions dt. 23.03.2022 & 20.04.2022. The appellants submitted that the statements dt. 16.03.2022 and 17.03.2022 recorded from them were under threat and coercion by department and the same were retracted at the earliest possible opportunity. We observe that the Ld. Adjudicating Authority failed to take into account the retractions made by the appellant when they were still in the prison. We observe that the appellants vide Prisoner's Petition dt. 23.03.2022 addressed to Hon'ble Chief Metropolitan Magistrate, Calcutta through Superintendent, Jail submitted that they were not involved in any smuggling activity; the gold seized from them was of Indian origin and not smuggled in nature; the statements given by them on 16.03.2022/17.03.2022 were not voluntary and they were forcefully recorded; this is evident from the two emails sent by the appellants on 20.04.2022 wherein thy have categorically stated that the se....
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....ns. 6.5. The appellant Shri. Dharmender Kumar Jha submitted that gold weighing 872.910 gram valued at Rs. 46,04,600/- was seized from him on 16.03.2022 in Train No. 12301 - Howrah New Delhi Rajdhani Express by DRI officials, Kolkata on the reasonable belief that same were smuggled into India from Bangladesh in contravention of provisions of Customs Act and liable for confiscation under Customs Act. In this regard, the appellant submitted that vide mail dt. 20.04.2022, he has informed DRI officials that the seized gold was their ancestral property and he carried the impugned gold to Kolkata for making ornaments. The impugned gold weighing 872.910 gram, 24 carat was given by his grand father Sh. Nikunta Jha to his father Sh. Makeshar Jha. The appellant's father gave the impugned gold to appellant for making ornaments for distribution among his children. To this effect the appellant has filed an affidavit dt. 10.07.2023 before the Ld. Adjudicating Authority. Thus, we observe that the appellant Dharmender Jha has produced enough evidence for the legal ownership of the gold. However, the Ld. authorities have neither considered nor controverted the said submissions. 6.6. The depart....
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....rigin nature of the gold cannot be established on the basis of assumptions and presumptions. There must be positive evidence to substantiate the allegation of foreign origin of the gold, which is not available in this case. On the contrary, the evidences submitted by the appellant's shows that the gold has been procured from domestic sources. We find that the evidences submitted by the appellant are not negated. Thus, we hold that the evidence on record does not indicate that the gold seized is of foreign origin and smuggled from Bangladesh. Accordingly, answer to question no (i) in para 6.1 above is in the negative. (ii) Whether the burden of proving that the gold in question are not smuggled in nature, in this case is on the appellant under Section 123 of the Customs Act, 1962? (iii) Whether the evidences submitted by the appellants establish that the gold weighing 3152.900 were procured from domestic sources and hence not liable for confiscation? 7. Gold is an item notified under Section 123 of the Customs Act,1962. Section 123 of Customs Act, 1962 stipulates that the onus to prove that the gold is not of smuggled in nature is on the person who claims the ownership of t....
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....oluntary Disclosure of Income Tax Scheme. Further, the appellant submitted that the said gold was melted and refined to 919.84 gram of pure gold in the form of strips from which a couple of cut-pieces were obtained for its easy conveyance to Kolkata so that same be crafted into gold jewellery of new design. Out of 1112.75 gram of seized gold, procurement of 919.84 gram of gold was from old jewellery and 193 gram of gold approx.. was given to appellant by his father Sh. Vijender Kumar Aggarwal - declaration to this effect by appellant' s father submitted to ld. Adjudicating Authority. Thus, we find that the appellant Geetanshu Aggarwal has produced enough evidence for the ownership of the gold which was found in his possession. However, the Ld. authorities have not considered his submission and not given any findings on the submissions made by him. 7.3. The appellant Shri. Dharminder Kumar Jha The gold weighing 872.910 gram valued at Rs. 46,04,600/- was seized on 16.03.2022. The appellant vide mail dt. 20.04.2022 informed DRI that the seized gold was their ancestral property and he carried the impugned gold to Kolkata for making ornaments. The impugned gold weighing 872.910 gram,....
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....hen it is established that the goods are of foreign origin and smuggled into the country without payment of applicable customs duties. In this case, we find that there is nothing records to substantiate the allegation that the impugned goods seized from the appellants were smuggled from Bangladesh or any other foreign country 7.7. Our view is supported by the decision of the CESTAT in the cases of:- i) Principal Commissioner of Customs (Prev), Delhi Vs. Ahamed Mujjaba Khaleefa 2019 (366) ELT 337 (T) dismissed the appeal of revenue holding that jewellery not bearing any foreign marking - other than statement of passenger no other proof produced by revenue to substantiate claim that jewellery smuggled into India. ii) Commissioner of Customs (Prev), Shillong Vs. Manisha Devi Jain 2019 (370) ELT 401 (T) held that Indian origin remolten gold/gold ornaments could not be legally confiscated as its possession not prohibited under any provisions of law. 7.8. Thus, by relying on the decisions cited above, we observe that the provisions of section 111(b) and 111(d) of Customs Act, 1962 are confined to the imported goods. As there is no evidence brought on record to ....
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....entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees, whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty [not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest. 8.1. The essential ingredients for invoking the provisions of Section 112 are as under: a) act or omission on part of person which rendered the goods liable to confiscation under section 111 ibid. b) knowledge or c) reason to belief on the part of the person who is in any way concerned in any goods which he kno....