TMI Blog2019 (12) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the purchase of these biscuits from M/s. Sai Thirumala Jewellers and M/s. Adya Jewellers. He has not even named the jewellers in his statement at all. The invoices issued by these jewellers were brought on record for the first time while replying to the show-cause notice and therefore the Department could not investigate from the said jewellers regarding the authenticity of these invoices. Further, the retraction of the statement by a Sworn Affidavit is not valid because the said alleged affidavit was not produced before any authority and it was only executed before a Notary. Authenticity of invoices - HELD THAT:- The purchase invoices from the local jewellers were not produced during the investigation. Therefore, the Department could not verify the authenticity of those invoices. There is no infirmity in the impugned order which is upheld - appeal dismissed - decided against appellant. - C/21393/2018-SM - Final Order No. 21028/2019 - Dated:- 25-11-2019 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER Mr. M.S. Nagaraja, Advocate For the Appellant Mr. P. Gopakumar, Jt. Commr. (AR) For the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proposals to confiscate the seized gold and impose penalty as not sustainable and that he and his family members had purchased the said gold biscuits and he had purchased bills in respect of 15 gold biscuits weighing 1500 grams. He has also stated that he was coerced into giving the statements which were not voluntary and that he has retracted the same by executing a sworn affidavit. 2.2. After following the due process, the adjudicating authority passed Order-in-Original dated 30/11/2017 whereby the gold biscuits of foreign markings totally weighing 1028.35 grams valued at ₹ 30.62 lakhs were confiscated under Section 111(d) of the Customs Act, 1962 and imposed a penalty of ₹ 9,00,000/- (Rupees Nine Lakhs only) under Section 112(a) of the Customs Act, 1962 on Shri. Ravi Kumar R.M. Aggrieved by the said order, appellant filed appeal before the Commissioner by raising various grounds against the Order-in-Original and the Commissioner after considering the submissions of the appellants, rejected the appeal. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lers and they have issued the certificate regarding the sale. He further submitted that the Additional Commissioner in the Order-in-Original has held that 6 gold biscuits having markings of MMTC, PAMP and HDFC bearing Indian Markings are not liable for confiscation and ordered release of the same subject to any action that the Income Tax authorities may take and the balance 11 gold biscuits totally weighing 1028.35 grams approximately valued at 30.62 lakhs were confiscated under Section 111(d) of the Customs Act. He further submitted that both the authorities have wrongly invoked Section 123 of the Customs Act, for the proposition that burden of proof that the gold biscuits seized under Section 132 of the Income Tax Act on 16/1/2016 were not smuggled goods, they were imported and Customs Duty has been paid on them, in on the appellant. He referred to the provision of Section 123 providing burden of proof and submitted that Section 123 of the Customs Act applies only to the goods seized under the Customs Act, 1962 whereas in the present case the goods have been seized under Section 132 of the Income Tax Act, 1961 and therefore Section 123 of the Customs Act is not applicable in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Nand Kishore Sumani Vs. Commr. of CE, Cus. ST 2016 (333) E.L.T. 448 (Tri.-Kol.) [confirmed by High Court of Kolkata in the case of Commr. of Cus., CE ST Vs. Nanda Kishore Somani 2016 (337) E.L.T. 10 (Cal)] 5. On the other hand, learned AR defended the impugned order and submitted that in the present case gold was seized under joint operation by the Income Tax Investigation Wing and the Directorate of Revenue Intelligence. The gold was seized under the Income Tax Act along with demonetized currency. The Income Tax authorities had officially communicated the seizure of the gold to the DRI for further necessary action and thereafter the statement of the person from whose possession the gold was seized was recorded under Section 108 of the Customs Act, 1962 and after following the due process under the Customs Act only the show-cause notice was issued. He further submitted that in the case-laws relied upon by the appellant, the gold was seized by the Police under the State Government and handed over to the Customs under the Central Government and therefore the decisions relied upon by the appellant are not applicable in the present case. He rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n note of by the authorities concerned and hence, we answer both the questions in favour of the Revenue and against the Petitioner. 5.1. He also relied upon the decision of the Tribunal in the case of Rajaram Johra Vs. CC (Airport Cargo), Chennai 2016 (5) TMI 554 CESTAT Chennai wherein said Chennai CESTAT has observed as under: 11.2. The gold as stated above were found to be contraband goods and Customs believed that to be smuggled one when that carried foreign marking and no evidence of lawful import thereof was adduced before investigation, adjudicating authority as well as the Trial court. Appellant along with the accomplices miserably failed before the Trial Court to succeed and their trial ended in conviction with no return of the gold to them. The MO-1, 2 3 in that case which were the offending gold in the present appeal were ordered by the Magistrate to be returned to Customs. When cogent and credible evidence came to the surface demonstrating that the appellant was in possession of the contraband gold with foreign marking thereon and such goods were not lawfully imported, there is no scope at all for him to go out of the purview ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not valid because the said alleged affidavit was not produced before any authority and it was only executed before a Notary. Further I find that Hon ble Kerala High Court in the case of Commr. of Customs, Cochin Vs. Om Prakash Khatri reported in 2019 (366) E.L.T. 402 (Ker.) has considered the scope of Section 123 of the Customs act and has held in para 18 as under: 18. We have considered the decisions relied on by both sides and are of the opinion that in case of seizure of gold, even without markings, the burden is upon the person, who has custody of the gold, under Section 123 of the Act, to prove that the gold was legally acquired. The statement recorded under Section 108 of the Act could be safely relied upon in the proceedings against respondents. In K.I. Pavunny v. Assistant Collector, (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) the Hon ble Supreme Court has held that a person summoned under Section 108 of the Act is not the person accused of an offence for the purpose of Section 24 of the Evidence Act. The primary guestion for consideration in that case was whether the retracted confession statement of the appellant is inadmissible in evidence und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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