TaxTMI 
TaxTMI 
2026 (6) TMI 533
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....ncy amounting to Rs. 63,000/- were seized by the DRI officers on 20.08.2024 at Lucknow while it was being carried by Suresh Chand Gupta, partner of the Appellant firm, from Gorakhpur to Lucknow for business purposes. The Appellant (Suresh Chand Gupta) was arrested by the DRI officers and released on bail only on 21.12.2024 from Lucknow District Jail. 4. Copy of Panchnama and inventory memo etc. were not given by DRI officers at the time of seizure. However, it was procured by the Appellant from Civil Court where the DRI officers submitted the papers for taking remand under judicial custody. 5. After being released on bail on 21.12.2024 from Lucknow District Jail, the Appellant filed an application on 30.12.2024 under Section 110A of Customs Act, 1962, before the Commissioner of Customs, Lucknow for provisional release of seized gold and gold jewellery. 6. That, even after four reminders given by the Appellant, no order on the Provisional Release application dated 30.12.2024 was issued by the Learned Adjudicating Authority 7. Aggrieved by the inaction of the Learned Adjudicating Authority, the Appellant approached the Hon'ble High Court of Allahabad, Lucknow Bench by....
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....3,349.000 41,990.607 31.03.2022 351.820 69,529.491 23,349.000 46,462.853 31.03.2023 Nil 66,193.045 Nil 62,858.991 31.03.2024 Nil 68,544.649 Nil 67,721.348 13. Closing Stock of gold/gold jewellery for the last five F.Y. shows that daily basis stock ranges between 66 Kgs to-76 Kgs of gold. Hence, carrying 5 kgs of gold and less than one kg of gold jewellery cannot be taken as an abnormal act on the part of the Appellant. Copies of Stock Status reports for the F.Y. 2019-20 to 2023-24 are part of Annexure No.6. 14. Since the gold and gold jewellery which were seized by DRI on 20.08.2024, were taken from the stock of the Appellant firm and carried to Lucknow for business purposes, the seized gold pieces were not having any foreign markings nor were in biscuit form. It is further submitted that the recovered gold pieces and jewellery were duly accounted for in the firm's stock register maintained under GST law which were brought to Lucknow for exchange and purchase of jewellery etc. No evidence has been adduced by DRI officers to prove smuggled nature of the recovered gold pieces and jewellery, nor there is any evidence that said ....
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....ns. In the circumstances, even if the Learned Adjudicating authority passes order for confiscation of the seized primary gold and gold jewellery, then also he will be statutorily bound to redeem it on payment of redemption fine fixed by him in lieu of confiscation in accordance with Section 125 because gold is not a prohibited item. Thus, provisional release should be considered as a matter of legal right subject to fulfilment of the conditions of surety and/or security. 19. Further we take note of the fact that whether at this stage, the seized gold bars and gold jewellery can be released to the Appellants or not. 20. The said issue has been examined by the Hon'ble High Court of Delhi in the case of Additional Director General (ADJ.) vs. Its My Name Pvt Ltd (supra) wherein the Hon'ble High Court has observed as under: "73. We may hasten to add, here, that our view, in this regard, does not discountenance, in any manner, the allegation, of the DRI, that the entire quantity of 51172.4 grams of gold jewellery was, in fact, being smuggled into India, or that it was, consequently, liable to confiscation. That is a matter to be decided in adjudication. Provisional release....
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....the Learned Tribunal in having permitted provisional release of the gold jewellery. 76. We are not persuaded to change our view, on the basis of the various statements, recorded under Section 108 of the Act, on which the Learned ASG sought to rely. Statements, under Section 108 of the Act, we may note, though admissible in evidence, acquire relevance only when they are, in fact, admitted in evidence, by the adjudicating authority and, if the affected assessee so chooses, tested by cross-examination. We may, in this context, reproduce, for ready reference, Section 138B of the Act, thus : "Relevancy of statements under certain circumstances. 138B. - A statement made and signed by a person before any gazetted officer of (1) customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense w....
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....y invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 20. In fact, Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. 21. It is only, therefore,. (i) after the person whose statement has already been recorded before a Gazetted Central Excise Officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-ex....
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....ame has also been assessed as per the Learned Advocate for the Appellant on 24th April 2019. This bill of entry also covers a gold jewellery weighing 25.209 kg. Thus, we find that importing person Shri Amit Pal Singh has presented the gold jewellery which was being imported on 24th April, 2019 to the Assessing Officer and has claimed that the gold jewellery is 'India made' which is being re-imported after same had been exported for exhibition purpose vide shipping Bill No. 117209, dated 20th April 2019 covering quantity of 33.805 kgs. and vide shipping Bill No. 117932, dated 13th March 2019 under which jewellery weighing 25.299 kg. was exported. It is a matter of record that at the time of the re-import of balance quantities of the jewellery, the Assessing Officer was presented with necessary documents, such as, shipping bill along with invoices, permission for taking goods for exhibition, export declaration form of the Appellant, Customs endorsed colour photographs of jewellery, the bill of entries for re-import along with packing list covering details of jewellery items of import along with the photocopies of the jewellery. We find that authenticity of the goods being re-imported....
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....ition, we find that the gold jewellery was being re-imported after export of the same for exhibition purpose following the laid down procedure and standard operating procedure, barring a few minor lapses, and therefore the consignment of re-imported jewellery cannot be equated with import of prohibited goods. Thus, we find that the Appellant has a strong case for provisional release of re-imported jewellery as per the provisions of Section 110A of Customs Act, 1962. 28. So far as the seizure of 25 gold bars (one kg. each) [total] weighing 25 kg. and cut pieces of gold bars, gold dust and assorted gold jewellery weighing 26404 gms. and certain silver bars and cut pieces weighing 44908 gms. is concerned, it has been shown to us by Learned Advocate that out of the 25 gold bars weighing 1 kg. each is concerned, 22 gold bars have been imported by the Appellant under Advance Authorization Scheme vide Bill of Entry No. 2873828, dated 17 April 2019. The bill of entry for import have been assessed at the nil rate of duty under Advance Authorization No. 0510409190 dated 4 January 2019 for import of gold bar having purity of 0.995. It's a matter of record that 50 gold bars h....
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....izure of almost the whole working capital (Goods, raw material, W.I.P.), for over 6 months, the Appellant is facing difficulty of livelihood, it's workmen, and others too. The Appellant is also incurring regular fixed cost or establishment cost, unable to fulfill its time-bound export obligation, resulting in irreparable loss and civil consequences. The balance of convenience lies in allowing provisional release in favour of the Appellant. We thus allow provisional release on the following terms :- (i) Bond for full value of the seized goods; (ii) The bond be backed by Bank Guarantee of Rs. 1.25 crores, with auto renewal clause in favour of the revenue authority." The order of the Hon'ble High Court in the case of Additional Director General (ADJ.) vs. Its My Name Pvt Ltd (supra) has been approved by the Hon'ble Supreme Court reported (supra). 22. In these circumstances, if violation of the said condition is subjected to prohibition, but in the case in hand, gold is a notified item under Section 123 of the Customs Act, 1962, wherein the burden of proof of procurement of the said gold lies on the Appellant that the same is procured through licit means and the....