TMI Blog2021 (3) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... is held on the basis of assumption presumption that the gold is of smuggled in nature which cannot be appreciated. Further, the gold in question is not prohibited goods in terms of Section 2(33) of the Act, in these circumstances, the absolute confiscation of the gold is against the legal provisions as held by this Tribunal in the case of YAKUB IBRAHIM YUSUF VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2010 (10) TMI 650 - CESTAT, MUMBAI] . Appeal allowed - decided in favor of appellant. - Customs Appeal No. 60006 of 2021 - FINAL ORDER NO. 60569/2021 - Dated:- 25-3-2021 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Present for the Appellant: Mr. Sudhir Malhotra, Advocate Present for the Respondent: Ms Swati Chopra, Authorized Representative ORDER The appellant is in appeal against the impugned order wherein ten gold biscuits weighing 1160 grams valued at ₹ 30,57,320/- have been absolutely confiscated and penalty of ₹ 3,00,000/- has been imposed on the appellant under the provisions of the Customs Act, 1962. 2. The facts of the case are that the impugned ten gold biscuits of foreign origin were seized by Punjab Police, Amritsar during the search of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e police and later handed to the Customs Officials. To support of his contention, he relied on the following case laws: (i) Commissioner of Customs Vs. D. K. Singh - 2006 (199) ELT 202 (MP) (ii) E. Eswara Reddy Vs. C.C. - 2006 (196) ELT 410 (Tribunal) (iii) Ram Lubhaya Vs. C.C.- 2002 (147) ELT 807 (Tribunal) (iv) Ghewar Chand Vs. C.C. - 1999 (111) ELT 379 (Tribunal) 3.2 He further submits that the authority below has failed to appreciate the fact that the appellant has discharged the onus required under section 123 of Customs Act, 1962 by producing the invoice No. 254 dt. 03.03.1999 and 266 dt. 16.03.1999 and certificate thereto of M/s Rakesh Jewellers, Jalandhar. Sh. Naresh Malhotra partner of M/s Rakesh Jewellers joined the investigation and in his statement dt. 27.12.2017 recorded under section 108 of Customs Act has deposed the invoice No. 254 dt. 03.03.1999 and 266 dt. 16.03.1999 and also deposed that certificate thereto have been issued by them. But the Revenue failed to bring on records to justify that the impugned gold was smuggled one. The authority below has wrongly rejected the plea of purchase of the gold biscuits by Smt. Ramesh Verma on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yusuf Vs. Commissioner of Customs 2011 (263) ELT 685 (Tribunal) (ii) Commissioner of Central Excise Service Tax Vs. Mohd. Halim Mohd. Shamim Khan - 2018 (359) ELT 265 (Tribunal) (iii) Commissioner of Customs (Preventive) Vs. India Sales International - 2009 (241) ELT 182 (Cal). 3.9 He further submits that the show cause notice issued to the appellant is highly time barred as the police raided the residential premises and the impugned goods were seized on 24.09.2007. Thereafter on 13.06.2009, the Hon‟ble Judicial Magistrate has held that the police officer is not a proper officer to seize the goods and after that on 25.10.2011, Smt. Ramesh Verma moved an application to release of the said gold to her being the registered owner of the said gold. In that application, the Revenue has contested the claim filed by Smt. Ramesh Verma, therefore, it was in the knowledge of the Revenue about the seizure of the gold by Punjab police itself at the time of contesting of the application filed by Smt. Ramesh Verma on 25.10.2011. In these circumstances, a show cause notice issued on 07.03.2018 after seven years of the knowledge of the Department is barred by limitation as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o justify the confiscation of the gold biscuits as the photocopies of the invoices produced by Sh. Rajesh Verma or Smt. Ramesh Verma were not in existence at the time of seizure of the gold of foreign origin by Punjab police in 2007. The original copies were not produced and no other documentary evidence produced showing that the transaction is genuine. She relied on the following case laws: (i) Sudip Saha vs. CC, Shillong 2019 (369) ELT 1039 (Tri. Kol.) (ii) Naresh J Sukhwani vs. UOI 1996 ELT 258 (iii) Malabar Diamond Gallery P. Ltd. vs. ADG, DRI, Chennai 2016 (341) ELT 65 (Mad.) 5. Heard the parties and considered the submissions. 6. On careful consideration of the submissions made by both the sides, the first issue arises whether the impugned gold seized by Punjab police and later on handed over to Customs Officers, the provisions of Section 123 of the Customs Act, 1962 are applicable or not? in the light of the various judicial pronouncements namely Commissioner of Customs Vs. D. K. Singh (supra), wherein the Hon‟ble Madhya Pradesh High Court held as under: 11 . , there can be no scintilla of doubt that the seizure made under the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief. Further, in the case of Ram Lubhaya Vs. C.C. (supra), this Tribunal has held as under: 6 . Admittedly, the gold biscuits were seized from the possession of the appellant by the Railway Police at the time of checking at Panipat Railway Station. It is only thereafter that the Customs Authorities approached the Police for handing over those biscuits to them for investigation. The Customs Officers got the order for the transfer of the gold biscuits to them from the Chief Judicial Magistrate on 17-1- 2000. Therefore, no presumption that the gold biscuits were smuggled one, could be legally drawn under Section 123 of the Customs Act. It was for the Customs Authorities to prove by positive evidence that the biscuits had been smuggled into India illegally without payment of Customs duty. In this view, we are fortified by the ratio of the law laid down by the Apex Court in the case of M/s. Gian Chand Ors. supra, relied upon by the learned Counsel. In that case, seizure of the gold was made by the Police and later on the same was transferred to the Customs Authorities under Section 180 of Sea Customs Act and the Apex Court observed as under :- If the goods seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en able to locate the holder of the b) said receipt, AbduI Razak. Since the burden was on the Department to do so, the Department cannot now simply brush away the said receipt on the group that it was produced later. I have perused the Order-in-Original as well as the Order-in-Appeal impugned very carefully. Apart from the grounds that the Baggage receipt was not accompanying the goods during transit and that a copy thereof was produced after a month of seizure, there is no other evidence on record in these orders to show that the said Baggage receipt clearly did not cover these goods or that the goods were otherwise of smuggled origin. Since I have already held that Section 123 cannot be invoked against the appellants in this case, and since no other evidence has been led by the Department, therefore it is clearly concluded that the benefit of doubt clearly goes to the appellants. I find that Shri Ghewarchand is the only person who has claimed ownership of the gold. The statement of Satyanandam that the gold was paid for by money given by Shri Ghewarchand has not been disputed by anyone. Therefore the claim of Shri Ghewarchand also cannot be brushed away under law. 12 . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eu of confiscation . Whenever confiscation of any goods is authorised by this Act, the (1) officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. Where any fine in lieu of confiscation of goods is imposed under (2) sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods. 4 . Only prohibited goods cannot be released on payment of redemption fine. Admittedly, the gold in question is not prohibited goods under the Customs Act or any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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