TMI Blog2021 (3) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... of 394.570 grams of gold seized on 06.07.2015 from the appellant s car bearing registration No. PB-02-AP-3575 and the appellant said that the said gold does not belong to him. Further, the wife of the appellant claims the ownership of the same and the statements stated herein above, have corroborated with evidence by way of certificate issued by the bank that on 26.05.2015, she has operated the locker to take out the gold. Further, railway tickets booked on 06.07.2015 at 11:08 AM for 07.07.2015 for the departure from Amritsar to New Delhi but no credence has been given to these evidences produced by Smt. Usha Devi in her statement and the Revenue has not tried to investigate the matter for verification of the above documents. In these circumstances, benefit of doubt goes in favour of the appellant as the appellant has given the evidence that the impugned gold belongs to Smt. Usha Devi, which has been given to her by her father who has died on 04.11.2012 and the same was kept in bank locker. The appellant has able passed their onus of ownership acquisition of the gold in question. As the appellant has able to prove the source of acquisition of the gold in question, the same can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was accepted. No appeal has been filed against the said order by the Revenue; therefore, the ld. Commissioner (Appeals) has gone beyond the scope of the appeal filed by the appellant. The appellant has challenged the adjudication only to the extent of absolute confiscation of the gold and Hyundai Santro car as both were belong to her and no show cause notice has been issued by the ld. Commissioner (Appeals) to the appellant for proposing penalty. Therefore, penalty imposed on the appellant namely Smt. Usha Devi is not sustainable. 3.2 With regard to the appeal filed by Sh. Vijender Singh, it is his submission that the impugned proceedings are bad in law and not sustainable being in defiance to the provisions of Section 155(2) of the Customs Act, 1962. In this case, the ld. appellate authority held that the provisions of Section 155(2) of the Act are not applicable as the appellant had acted in deliberate and willful defiance of the provisions of the Act. It is his submission that the appellant neither cleared any pax on 06.07.2015 nor statement of any passenger brought on records to substantiate involvement of the appellant in the alleged offence. The Department faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to retrieved from mobile has been brought on record. Therefore, it is submitted that entire findings are based on so called whatsapp which are said to have been retrieved from various mobile phones as mentioned in the show cause notice, but neither the said mobile phones data nor CCTV clips nor DVR were made RUD to the show cause notice by the Department nor the certificate of the person who retrieved the data brought on record. There is nothing corroborative brought on records regarding alleged whatsapp conversation. To support this, he relied on the decision of the Hon ble Apex Court in the case of Anvar P.V. vs. P.K. Basheer 2017 (352) ELT 416 (SC) to say that the method of providing the electronic evidence by referring Section 65A and 65B of the Evidence Act, 1873 and the authorities below have failed to appreciate that the electronic evidences relied upon without satisfying the requirement of Section 65A and 65B of the Evidence Act are not inadmissible evidence. 3.6 The ld. Counsel further submitted as under: - Modus Operandi: Concealment of gold in his person and than in his own car. There is neither any statement of the appellant nor of any person regarding conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the possession of smuggled gold and facilitation of smuggling of gold as alleged in the show cause notice cannot be claimed as anything done or purported to be done in good faith of pursuance of the Customs Act. The period of limitation and issuance of prior notice under Section 155(2) of the Act is for initiating proceedings in respect of an officer who has acted in good faith in pursuance of the Customs Act, whereas in this case the appellant has acted in defiance and violation of the Act. To support this, he relied on the case laws P.N. Ramaswami, J.S. Sakuntla Bai vs. Customs Inspector, Reddichavadi 2000 (126) ELT 166 (Mad.) and Mukesh Gupta vs. CCE, Meerut 2010 (261) ELT 251 (Tri. Delhi). 4.2 He further submits that the appellant has adopted this plea that the electronic evidences relied upon without satisfying the requirement of Section 65B of Indian Evidence Act are inadmissible evidence and accordingly incorrectly relied upon. It is his submission that the modus operandi of smuggling of gold in connivance of appellant No.1 has been confirmed vide admitted statements recorded under Section 108 of the Customs Act, 1962 of Sh. Sanjeev Kumar @ Billu, Sh. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, therefore, I hold that penalty on the appellant namely Smt. Usha Devi is not sustainable. Accordingly, the same is set aside and the appeal is allowed. 7. In Appeal No. C/60042/2020 The ld. Counsel for the appellant submits that in terms of Section 155(2) of the Customs Act, 1962, a notice within three months was required to be given to the appellant of the alleged offence. Admittedly, the notice has been given to the appellant on 06.06.2016, which is beyond the time limit prescribed under Section 155 (2) of the Customs Act, 1962. Moreover, the ld. A.R. relied on the judgments in the cases of P.N. Ramaswami, J.S. Sakuntla Bai (supra) and Mukesh Gupta (supra). In both the cases relied upon by the ld. A.R., it has been held that when there is a malafide intention of the officers, there is no requirement to issue the notice under Section 155 of the Act. If the notice under Section 155 of the Act was not required then why the notice was issued. Admittedly, no notice under Section 155 of the Act has been issued in the said cases; but in the case in hand; admittedly, a notice under Section 155 of the Act has been issued on 06.06.2016 which is highly time barred. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sh. Virendra Verma to implicate the appellant in this case but as they have clearly stated that the gold in question does not belong to them and this appeal is restricted to absolute confiscation of the gold in question. Therefore, the statements given by the persons relied upon by the Revenue are also support the case of the appellant. 10. The case before me is of seizure of 394.570 grams of gold seized on 06.07.2015 from the appellant s car bearing registration No. PB-02-AP-3575 and the appellant said that the said gold does not belong to him. Further, the wife of the appellant claims the ownership of the same and the statements stated herein above, have corroborated with evidence by way of certificate issued by the bank that on 26.05.2015, she has operated the locker to take out the gold. Further, railway tickets booked on 06.07.2015 at 11:08 AM for 07.07.2015 for the departure from Amritsar to New Delhi but no credence has been given to these evidences produced by Smt. Usha Devi in her statement and the Revenue has not tried to investigate the matter for verification of the above documents. In these circumstances, benefit of doubt goes in favour of the appellant as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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