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TMI Blog2017 (12) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... g with penalty of Rs. 25,000/- under Section 112 of the Customs Act for illegal possession of gold. 2. The brief facts as per the show cause notice issued in December, 2005 are that there was a search proceeding conducted by Central Excise Officers, Ghaziabad on 3rd February, 2005 at the residential premises of Shri B.K. Lakhotia (Director of M/s Rathi Industries Ltd., Ghaziabad) located at A 49Y, Ashok Nagar, Ghaziabad. A Bank passbook having an Account No.7135 of Oriental Bank of Commerce, Nasirpur, Branch Ghaziabad, in the name of Smt. Sangeeta Maheshwari (appellant) was found. In the said passbook there was a reference of one Locker No.620. The said locker was identified by the officers and sealed. Thereafter the said locker was opened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also made with the landlord of Labh Niwas , Shri Kirti J. Ambani, who in his statement dated 5th May, 2005, inter-Alia stated that they did not have any tenant by the name of R.D. Jewelers on the 1st Floor of Labh Niwas Building at any point of time. The said to gold biscuits each weighing 116.75gms embossed with foreign markings "Johnson Mathew London, 9990" and "Rand Refinery 9990" and valued at Rs. 71,801/- were seized by the Central Excise officers under Section 110 of the Customs Act, under the reasonable belief that the said gold bars biscuits were illegally imported into the country in violation of the Customs Act, 1962 and hence liable for confiscation. The said two gold bars were seized under the Panchnama dated 09/08/2005 (det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that from the Bank passbook recovered belonging to the appellant, who was staying in the house premises belonging to her father-in-law, which indicated that she was holding the Locker No.620, there was no material before the Authority to seize her locker in absence of any search warrant - Panchnama proceedings under the provisions of the Central Excise law or the Customs Act. Hence, the Assistant Commissioner (A.E.) neither had any material before him to form reason to believe, nor recorded any reason to believe before authorizing the search in respect of Locker No.620, directions were given on telephone itself to his subordinate officers who were conducting search at the residence of Shri B.K. Lakhotia. It was also stated that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the two gold bars in question without giving any option to redeem and further penalty was imposed of Rs. 25,000/- under Section 112 of the Customs Act. Being aggrieved the appellant preferred appeal before Learned Commissioner (Appeals) who vide the impugned order was pleased to reject the appeal. 6. The Learned Counsel for the Appellant have taken me through the copy of the RUDs and also reiterated her submissions and grounds of appeal. She further emphasizes that the appellant have discharged her onus as required under law under Section 123 of the Customs Act and as such the order of confiscation and penalty is bad. She further said that the whole proceedings are on abuse of law, there being no warrant of search against the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve got no evidentiary value as the same is apparently not based on any records, as regards tenancy about 20 years back and further the said Shri Kirti J. Ambani was never produced for examination and cross-examination in the adjudication proceedings. In this view of the matter, I hold that the appellant have discharged the onus as required under Section 123 of the Customs Act, 1962. Accordingly, I set aside the order of confiscation and penalty against the appellant.
9. The appellant shall be entitled by way of consequential relief, the return of her two gold bars from the Department forthwith or within a period of 60 days from the date of receipt of a copy of this order.
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