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2020 (10) TMI 783 - AT - CustomsValidity of Search and Seizure - Smuggling - Gold - cross examination of the panch witnesses - Whether the Revenue establish the existence of reasons to believe that the impugned gold was smuggled? - HELD THAT:- It was incumbent upon the Department to prove the smuggled nature of the gold also. The only effort revenue seems to have made is to mention in the show-cause notice that as no valid import documents could be produced by the person carrying the gold, the same are deemed to be smuggled goods. Show cause mentions that ‘it seems settled fact that the seized gold were illegally brought into India from abroad by any route other than the route specified under Clause (c) of Section 7 of Customs Act, 1962. No meaningful inquiry and investigation appear to have undertaken to prove the smuggled nature of the gold; it is also not mentioned at least from which foreign country, the impugned golds have been illegally imported. Whether the impugned gold is liable to be categorized as gold of foreign origin? - HELD THAT:- There is no whisper in the entire show cause notice about the origin of the gold bars seized from the appellant. It is not mentioned as to where, how and by whom the said gold was smuggled into India. Therefore, the smuggled nature of the impugned gold is far from established. In such circumstances, the department appears to have attempted to cover up the inadequacies in the investigation with not so convincing reasons. No reference was made to experts in the field. Though Chemical examiners report indicated the purity of the Gold, it did not conclude that the impugned gold was of foreign origin - Department has not established that the seized gold is of foreign origin and has also not established that the same was smuggled in to India. As the reasons to believe that the impugned Gold is of foreign origin and is smuggled, benefit of doubt or benefit of any shortcomings in the investigation should accrue to the appellant and not to the Revenue. Whether the Customs have followed correct procedure vis-à-vis search and seizure of the gold? - HELD THAT:- It is found that no proper search of the appellant was conducted at the Railway station. As per the show cause notice, pieces of gold were found with the appellant at the Railway station as well as the Customs House. The reasons for summoning a person, instead of searching and seizing on the same spot and taking him to the Customs House for detailed search etc. has not been properly explained in the show cause notice and in the order-in-original. The Revenue did not establish that the impugned gold was of foreign origin and was smuggled. Therefore, the seizure of the impugned gold is not maintainable - Appeal allowed - decided in favor of appellant.
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