TaxTMI 
TaxTMI 
2026 (2) TMI 193
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....revealed that Shri J. Anand was previously known for smuggling, and his phone records linked him to Shri Sathish Kumar, a driver for the appellant K. Sivamani. Shri K. Sivamani and Shri J. Anand were close relatives. They were involved in illegal smuggling activities through Kodiakarai coastal region, collaborating with contacts in Sri Lanka. The appellant herein was allegedly found to be the mastermind of the illegal activity. A Show Cause Notice was issued for confiscation and penalties. The Commissioner of Customs ordered absolute confiscation of the gold and vehicle (with an option to redeem the vehicle for Rs.1,25,000) and imposed a penalty of Rs.2,50,00,000 on both J. Anand and K. Sivamani under Section 112(a) of the Customs Act, 1962. Aggreived by the said order, Shri K. Sivamani has appealed this decision before us. 3. The learned Advocate Shri S. Satish chandrasekaran appeared for the appellant and Ld. Authorized Representative Smt. O.M. Reena appeared for the respondent. 3.1 Shri S. Satish chandrasekaran the Ld. Counsel for the appellant submitted the following: A) The Ld. Commissioner Appeals has relied upon notification no.31/2003-CUS, dated 01/03/2003, w....
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.... that since the Gold was received by the said Anand near the sea shore, the same has been imported from Srilanka since both Anand and the Appellant Sivamani have been in constant touch with their counter parts in Srilanka. The said allegation has been without any basis and there has been no corroborative evidence to prove the said presumption of the department. Consequently, invoking the presumption under Section 123(1) of the Customs Act is unwarranted. The initial stop and search of the vehicle occurred without independent witnesses, further undermining the credibility of the proceedings. Additionally, the seizure documentation was prepared by a Central Excise officer from Chennai, who does not qualify as a "proper officer" under Section 2(34) of the Act. G) In summary, there is neither direct nor circumstantial evidence linking the appellant to the alleged offence, and the failure to specify the relevant subsections of Section 112 in the Show Cause Notice further vitiates the proceedings. The absence of a clear rationale for invoking Section 112(a) against the appellant and Anand demonstrates a lack of application of mind by the adjudicating authority. H) The L....
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....s identification marks. Consequently, it is impossible to determine by inspection whether any gold has been lawfully imported or is of illicit origin. This inherent anonymity renders it extremely difficult for customs authorities to prove that a particular quantity of gold has been smuggled. In recognition of this challenge, the law appropriately places the burden on the possessor to establish the lawful origin of the gold. She also referred to the judgment of the Hon'ble Madras High Court in the case of Commissioner Of Customs Vs Mohammed Ali Jinnah [C.M.A.No.2685 of 2023, Dated: 09.05.2025], in this regard. Further the Ld. A.R. stated that the Hon'ble Madras High Court in K.P. Abdul Majeed Vs Collector Of Customs And Central [1995 (80) E.L.T. 35 (MADRAS)], held that there is no bar under Section 122 of the Customs Act to proceed against the person who is outside the territorial limits. She stated that the impugned order was well reasoned and the appeal may be rejected. 4. We have gone through the appeal papers and have heard the parties to the dispute through their representatives. We find that the importation of gold into India is a highly regulated activity and has been a su....
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.... fire of cross-examination that a Court or Statutory Authority may be able to determine and assess its probative value. Using a deposition that is not so tested, may therefore amount to using evidence, which the party concerned has had no opportunity to question. Such refusal may in turn amount to violation of the rule of a fair hearing and opportunity implicit in any adjudicatory process, affecting the right of the citizen. The question, however, is whether failure to permit the party to cross examine has resulted in any prejudice so as to call for reversal of the orders and a de novo enquiry into the matter. The answer to that question would depend upon the facts and circumstances of each case. For instance, a similar plea raised in Surjeet Singh Chhabra v. Union of India and Ors. (1997) 1 SCC 508 before this Court did not cut much ice, as this Court felt that cross examination of the witness would make no material difference in the facts and circumstances of that case. (emphasis added) It was held by Courts that statements recorded under the Central Excise Act 1944 and the Customs Act 1962, were admissible in evidence. [See: Naresh J. Sukhwani Vs UOI - 1996 (83) E.L.T. 258....