TaxTMI 
TaxTMI 
2026 (10) TMI 257
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....r and were found to be of 24 karat purity, collectively weighing 1,499.400 grams (999.400 grams and 500 grams respectively). 3. During the course of the said proceedings, a Delivery Challan bearing Serial No. 47 dated 18.02.2022, issued by M/s. Raj Shree Jewellers, Basnahi Bazar, Mirzapur, Uttar Pradesh in the name of M/s Satvik Gold LLP, Kolkata and an authority letter issued on the letterhead of M/s. Raj Shree Jewellers, were also found in the possession of Shri Vijay Kumar Bind. The gold bars were thereafter seized under Section 110 of the Customs Act, 1962. The case of the Department, as emerging from the proceedings, is that the said gold was of foreign origin and had been brought into India through unauthorized routes. 4. In his statement recorded under Section 108 of the Customs Act, 1962, Shri Vijay Kumar Bind has inter alia allegedly stated to have referred to Shri Neeraj Agarwal (appellant herein) as his employer further, that he had travelled to Howrah on 22.02.2022 pursuant to the directions of the appellant, where he came into contact with one Shri Sonu Tiwari, from whom the two gold bars were allegedly received. Shri Vijay Kumar Bind in his also appears to have ....
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....nufacturing of designer jewelry with delivery challans when the DRI officers had apprehended the appellant's employee. (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 is 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 as per CRCL test 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 99.9%. (iv)....
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....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 stretch....
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.... 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 bef....
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....Prasad [2020 (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. 7.1. 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. 8. On the other hand, the Ld. Authorized Representative of the Revenue supported the impugned order. 9. Heard the parties and considered their submissions. 10. We find that in this case, it is not in dispute that the person carrying the gold, namely, Shri Vijay Kumar Bind had been intercepted on 23.02.2022 by officers of the DRI, Patna at Gaya Railway Statio....
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.... rightly dropped the penalty imposed on him. 14. In these terms, we set aside the impugned orders qua against the appellant and direct the authorities below to release the gold to the appellant herein within a period of thirty days from the date of receipt of this Order. 15. In these terms, the appeal is disposed of. (Order pronounced in the open court on 29.09.2026) ============= Document 1 OHUNDHI KATRA, CHUNDHI KATRA Pagar VHar Pradesh 251401 OSTIN: 43880PR41525 129 DATE: Jasny 13. 2022 INVOICE NOT TPKP/21-22/407 Buyer Roshres Jewellers Bem Outrar, Mirzapur U.P. 231001 CSTIN OBABNPABBAN12T INVOICE DESCRIPTION OTY RATE per AMOUNT ( E) Gold Biscuit 1500 g( 88,110.00 10 gm Rs.,216,500.000 OGST 11.5%] 108.247.50 OTHER Amoun! Charguubla In Words Rupees Seventy-Four Lakh Thirty-Two Thousand Nine Hundred Ninety Fine Only Authorized Bigemlety Teria & Conahonny - Salada price sold will not be taber bost R.Bigjest to Mi zapur juDiciEm THANK YOUFON YOUR RU8 NE88 Goods and Services Tax Government of India, States and Union Territories & NEERAJAG BOAEINPA788 QE Dashboard > Retums > GSTRZA GSTIN - 09ABNP 7884NIZT Legal Name - NEE....