TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 384
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....ng Order in Appeal No. KOL/CUS/CCP/AKR/300/2022 dated 11.07.2022 both passed by the Ld. Commissioner of Customs (Appeals), Kolkata. Order in Appeal No. KOL/CUS/CCP/AKR/298-299/2022 dated 11.07.2022 is arising out of Order-in-Original No. 63/ADC(P)/CUS/WB/2021-22 dated 25.11.2021 passed by the Ld. Joint Commissioner of Customs (Prev) Kolkata dated arising out of Seizure Case no. 03/IMP/CL/Gold/Cus/BCD/DPU/2017-18 dated 01.11.2017 in relation to seizure of 2 pieces (1 kg. each) of Gold allegedly recovered from the possession of the appellant no. Further, amount of Rs. 2,00,000/- Cash (Indian Currency) was also recovered which was alleged to be the Sale proceeds of smuggled gold. 1.2. Order in Appeal No. KOL/ CUS/ CCP/ AKR/ 300/ 2022 dated 11.07.2022 is arising out of Orderin- Original No. 67/ ADC(P)/ CUS/ WB/ 2021-22 dated 29.11.2021 passed by the Ld. Joint Commissioner of Customs (Prev) Kolkata dated arising out of Seizure Case no. 04/IMP/CL/Gold/ Cus/BCD/ DPU/2017-18 dated 01.11.2017 in relation to seizure of 2 pieces (1 kg. each) of Gold allegedly recovered from the possession of the one Siddhartha Sarkar. 2. It is alleged that Appellant No.1 was intercepted in front of 1, B....
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....e very beginning, he dis-owned any link or ownership on the gold. In the reply dated 29.12.2020, he contested that the seized Indian currency of Rs.2,00,000/- was not the sale proceeds of alleged smuggled goods. In course of adjudication, he also submitted photocopy of ITR-V for Assessment Year: 2017-18 evidencing that he had at his possession more than 2,00,000/- rupees at his cash and bank'. The seizure altogether was disputed. 3.3. The Appellant submits that the department had no other evidence on-record apart from the statements of the appellant that the same was recovered from his possession. At the time of adjudication, the appellant had asked for crossexamination of the panch witnesses and the seizing officer, which was not granted. The Appellant submits that he has disputed the voluntariness of the statements and it's admissibility in the proceedings. The Appellant submits that the provisions of Section 138B of the Customs Act, 1962, has not been complied with in this case and hence such statements are not admissible evidences. 3.4. The Appellant submits that even if is assumed that the gold was recovered from his possession, it is a case of town seizure where in ....
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....session the gold was recovered, did not indicate or allege anything about the involvement of the appellant as the owner of the recovered gold. 4.1. During the course of adjudication, prayer was made for granting opportunity for cross-examination of the said Girish Bhosale in terms of Section 138B, which was not granted. Apart from the said statements of the said Girish Bhosale, there is no other evidence on-record against the appellant. Thus, the Appellant submits that the penalty imposed by the Ld. Adjudicating Authority and upheld by the Ld. Appellate Authority against him is wholly misdirected. No case, even of indirect involvement in relation to the alleged smuggled goods, which is also disputed, is made out against the appellant. Thus, the Appellant No.2 submits that penalty under Section 112(b) is not imposable on him. 5. Regarding the penalty imposed(Appeal No. C/75723 of 2022), the Appellant No. 3. submits that he was neither present at the place of interception nor any gold was recovered from his possession. The entire case against the appellant is based upon purported statement of one Girish Bhosale, who purportedly runs a gold melting shop. The Appellant No.3 reite....
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.... of the gold in this case under Section 110 of the Customs Act, 1962 is legally not sustainable. 8.3. Section 123 of Customs Act, 1962, prescribes that the burden of proving that goods which have been seized under the Act are not smuggled in nature is on the person who claims the ownership of the goods, when seizure was affected under the reasonable belief that the said goods are smuggled. In this regard, we observe that for shifting the onus on the person who claims the ownership of gold, it is required to be proven first that the gold under seizure were of foreign origin and secondly once foreign character is proved, then the seizure must have been affected under reasonable that the gold is smuggled, only then the onus is shifted on the person who claims the ownership, to show that the same were not smuggled. Further, we find that the Appellant have not claimed the ownership of the gold in question. 8.4. In this regard, it is relevant to cite the judgement of the Hon'ble Supreme Court in Ganesh Das v. Collector of Central Excise [1994 (70) ELT 441 (SC)] wherein it was held that before the burden shifts to the person from whom the goods were seized, it must first be establis....
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.... of the appellant as the owner of the recovered gold. 9.1. Further, we find that during the course of adjudication, the Appellant prayed for granting opportunity for cross-examination of the said Girish Bhosale in terms of Section 138B, which was not granted. Since, the entire evidence against the Appellant No.2 and 3 is only the statement, we are of the view that the adjudicating authority should have given an opportunity to cross examine him. As the opportunity to cross examine Girish Bhosale was not given, we hold the view that the said statements of Girish Bhosale, cannot be relied upon in this proceedings against the appellant. As there is no other evidence other than the statement available on record to implicate the Appellant in the alleged offence, we hold that the allegation against the Appellants are not sustainable. 10. Regarding the imposition of penalties on the appellants under Section 112(b) of the Customs Act, we take note of the fact that in view of the discussions in the preceding paras, it has been held that the gold in question is not liable for confiscation. In the absence of any cogent evidence establishing the smuggled character of the gold, the appella....