TaxTMI 
TaxTMI 
2026 (10) TMI 141
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....t purity, collectively weighing 1,499.600 grams (999.600 grams and 500 grams respectively). 3. In his statement recorded under Section 108 of the Customs Act, 1962, Shri Manoj Kumar Pathak has inter alia allegedly referred to Shri Neeraj Agrawal (appellant herein) as his employer and further stated that, pursuant to the directions of the appellant, he had commenced his journey from Mirzapur towards Howrah on 14.01.2022. He appears to have stated that, instead of proceeding up to Howrah, he deboarded at Vardhaman Station on the morning of 15.01.2022 and thereafter reached Liluah, from where he proceeded to Chowrasta, Salkia, Kolkata and met one Shri Sonu Tiwari. Shri Manoj Kumar Pathak is stated to have further informed that Shri Sonu Tiwari handed over to him the two gold bars, one large and one small. He also appears to have inter alia stated that the said gold bars had been brought from Bangladesh by way of smuggling, as allegedly informed to him by Shri Sonu Tiwari. 3.1. Thereafter, the said gold was seized on 16.01.2022 under Section 110 of the Customs Act, 1962. 3.2. In the course of investigation, the premises of M/s K.K. Gold, Coimbatore were also searched. The prop....
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.... handover the Gold to M/s K.K Gold for manufacturing of designer. jewellery with delivery challans when the DRI officers had apprehended the appellant. (ii) The statutory reverse burden under Section 123 becomes operative only upon a seizure founded on a reasonable belief that the particular gold is smuggled; the mere fact that the article is gold does not dispense with that prerequisite. Revenue must point to material existing at the time of seizure that would lead an honest and reasonable person to that conclusion. Here the gold was seized from town, the gold was unmarked, the purity report did not identify origin, and no border movement, foreign supplier, import trail or other particularised evidence was found. Suspicion based on the nature or value of the commodity cannot replace the statutory threshold. (iii) The appellant submits that there were no inscriptions mentioned on the seized gold bars and the purity of gold is also not equal 99.9%. From the SCN, it is crystal clear that CRCL report, the purity of gold was only 99.7%, hence undisputedly the seized gold bars were of Indian origin. It is a well-known fact that purity of the foreign origin gold is of 9....
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....L.T. 1715 (Del.)] d. CC (P) v. Prabhash Kumar Jalan [CESTAT, Kolkata Bench Final Order No. 75500/2021, dated 27-8-2021]. e. Shri Sarvendra Kumar Mishra v. Commissioner of Customs [Final Order Nos. 70198-70199/2021, dated 6-9-2021] f. Nand Kishore Modi v. Commissioner of Customs (Preventive), West Bengal [2015 (325) E.L.T. 781]. g. Rajesh Pawar v. UOI [2014 (309) E.L.T. 600 (Cal.)] h. Commissioner of Customs (Prev.) Kolkata v. Ashok Kumar Agarwal [2017 (348) E.L.T. 555 (Tri. Kolkata)] (viii) Department has failed to discharge the obligation cast upon it. It is the case of the Department that the gold is smuggled. To prove the same be smuggled, the Department has not extended the investigation to reach the root of the matter. The Department has completely failed to go into the root of the matter as to how the goods were smuggled in nature nor it has based any evidence to this effect whereas the appellant from the very first day contending that the gold was part of stock in trade of M/s Rajshree jewelers and the appellant was sending the said gold to Coimbatore to manufacturer jewelry from such gold. In such circumstances, by no st....
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....Ismail vs. Spl. Director [2007 (220) ELT 3 SC]. (xii) Reference is made to Section 138B which dels with relevancy of statements under certain circumstances and lays down that (1) statement made and signed by a person before any gazetted officer of 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 which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. That the provisions of sub-section (1) shall, so far as may be, apply (2) in relation to any proceeding under this Act, other than a proceeding before a court, as they ....
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....020 (371) E.L.T. 243 (Pat.)]. (xvi) A Penalty cannot be imposed based on hearsay evidence, or the incriminating statement of other co accused. Reliance is also placed on the ruling of the Apex Court in the case of Vinod Solanki v. Union of India [2009 (233) E.L.T. 157 (S.C.)] wherein it has held that on the sole statement of co-accused, another co-accused cannot be convicted or fastened with penalty etc. There has to be corroborative evidence in addition to the statement of a co-accused. 8.1. In view of the aforesaid submissions, the Ld. Counsel for the appellant prays for setting aside the impugned order upholding the absolute confiscation of the gold in question and to direct the ld. adjudicating authority to pay the market value of seized gold in case the gold has been disposed of by the Customs. 9. On the other hand, the Ld. Authorized Representative of the Revenue supported the impugned order. 10. Heard the parties and considered their submissions. 11. We find that in this case, the person carrying the gold, namely, Shri Manoj Kumar Pathak, was intercepted at Gaya Railway Station on 16.01.2022 by officers of the DRI, Patna when he was returning to Mirzapur....