TaxTMI 
TaxTMI 
2026 (7) TMI 183
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....jid, Kolkata - 700 005, West Bengal. At the time of the search, the appellant, Md. Faiyaz Alam, along with one Md. Mumtaj Alam, was found present in and around the said premises. During the course of search, the officers recovered forty one (41) pieces of gold bars from the said premises/godown, which were said to belong to the above said persons. The persons present at the premises were unable to produce any licit documents evidencing lawful importation, acquisition or possession of the said gold. 2.1. The recovered gold was thereafter examined and valued by a Government-approved valuer, namely, M/s. S.K. Jewellers who, vide valuation report dated 24.05.2022, certified the same to be gold of foreign origin of 24 karat purity, collectively weighing 8087.460 grams and valued at Rs.4,19,73,917/-. The gold was accordingly seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the same constituted smuggled goods liable for confiscation under the provisions of the Customs Act. 2.2. During the course of investigation, statements of the appellant were recorded on multiple occasions under Section 108 of the Customs Act, 1962. In his initial statement dated 25....
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....er the Act. 2.5. The appellant contested the allegations by filing a detailed reply to the Show Cause Notice and was also represented through his authorised legal representative during the course of personal hearing before the adjudicating authority. 2.6. Thereafter, the Additional Commissioner of Customs (Preventive), West Bengal, vide Order-in-Original No. 06/ADC(P)/CUS/WB/2023 dated 26.06.2023, inter alia, ordered absolute confiscation of the seized gold and imposed a personal penalty of Rs.8,00,000/- upon the appellant under Section 112(a) and/or Section 112(b) of the Customs Act, 1962, holding him to be indirectly involved in the smuggling activities relating to the seized foreign-origin gold, besides imposing penalties on other co-noticees/co-accused. The ld. adjudicating authority, however, refrained from imposing penalty upon the appellant under Section 114AA of the Act. 2.7. Aggrieved thereby, the appellant preferred an appeal before the Ld. Commissioner of Customs (Appeals), Kolkata, which was heard together with the appeal filed by co-noticee Md. Mumtaj Alam. The Commissioner (Appeals), vide Order-in-Appeal No. KOL/CUS/CCP/KS/114-115/2024 dated 20.02.2024, rejec....
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....the premises of M/s Raja Textiles where the appellant was admittedly present and actively associated with the operations being carried out there. It was further submitted that the appellant, in multiple statements recorded under Section 108 of the Customs Act, 1962, had admitted that foreign-origin gold was being received and stored in the godown and thereafter distributed through carriers. The appellant had also acknowledged that he was working in the establishment and was aware of the activities being undertaken therein. The subsequent retraction of the statements was an afterthought and does not efface their evidentiary value, particularly when such statements were repeatedly made on different dates. 4.1. The Ld. Departmental Representative further argued that the appellant was not a mere bystander or casual employee and that the investigation revealed that he exercised a degree of control over the affairs of the premises, issued instructions to other staff members and was closely connected with the principal noticee, Md. Sahnawaz @ Raja Bhai. The statements of co-noticees and other witnesses also corroborated his role in the activities conducted from the premises. 4.2. It....
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....the Customs Act, 1962 were involuntary and subsequently retracted. We are unable to accept these submissions in their entirety. Although the gold was recovered from the godown premises and not from the physical person of the appellant, the records clearly reveal that the appellant and Md. Mumtaj Alam were found in charge of the premises at the relevant time and had access to and control over the godown from where the contraband was recovered. The appellant has also failed to furnish any material demonstrating lawful possession of the goods or explaining the circumstances under which such a substantial quantity of gold came to be stored in the premises under his custody. 7.3. It is pertinent to note that apart from the confessional statements recorded, the culpability of the appellant is also evident from various other facts such as the complete absence of licit documents, the nature and purity of the seized goods or the appellant's inability to offer any plausible explanation regarding the source and lawful possession thereof. 7.4. The appellant has also sought to argue that the burden under Section 123 of the Customs Act, 1962 does not fall upon him. We find no merit in ....