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TMI Blog2021 (5) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... estic flightNo. A1-821 to Srinagar on 23.04.2018. At Srinagar Airport, the appellant was checked at the exit point of Airport by Customs Preventive Staff and one gold biscuit bearing marks "PAMP SUISSE 100g FINE GOLD 999.9 C107781" was recovered. The said gold was seized on the reasonable belief that same is liable for confiscation and the gold is a notified item under section 123 of Customs Act 1962. The gold was seized absolutely and penalty of Rs. 10,000/- was imposed under section 112 of Customs Act. Against the said order, the appellant is before me. 3. A preliminary objection was raised by the Ld. AR that as per proviso to section 129A (1) (d), the appeal is not maintainable before this Tribunal being baggage as any goods imported or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the seized gold biscuit, market inquiry was made from the M/s RajeshJeweller, Srinagar and M/s Kewal Ornaments, Srinagar who has opined that the current market price of the seized gold biscuit is Rs. 3,22,000/- and it was concluded that it is evident that the appellant was in possession of one gold biscuit of foreign origin, as per details given above and he has failed to produce any valid documents to discharge the burden of proof under section 123 of the Act. Therefore, it appears that the said gold biscuit has been smuggled into India without following the proper import procedure and without payment of appropriate customs duty. 7. In counter, the contention of the Ld. Counsel is that the market enquiry was conducted in respect of valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is bad in law. He further submits that no specific provision of section 111 & 112 of Customs Act has been invoked, therefore, the gold cannot be confiscated. Consequently, no penalty can be imposed as held by the Hon'ble Apex Court in the case of Amrit Foods Vs. CCE 2005 (190) ELT 433 (SC). He further submitted that the Hon'ble Punjab and Haryana High Court in the case of CCE Vs. Max G.B. Ltd. 2008 (221) ELT 491 (P & H)also held that show cause notice is vague on specific violation not sustainable. He also relied on the decision of this Tribunal in the case of Delco Precitone Jewellers (P) Ltd. vs. CC 2000 (124) ELT 1105 (T) wherein it has been held that imposing penalty without arriving at any specific finding with reference to clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords that the seized gold is of foreign origin, therefore, the provisions of Section 123 of Customs Act are not applicable to the facts of this case. It is his submission that in terms of Section2 (25) of the Customs Act, 1962, the goods in question are not imported goods. Therefore, burden lies on the revenue to prove that the goods in question are imported goods. Therefore, he prayed that the impugned order is to be set-aside. 9. On the other hand, the Ld. AR submits that in terms of Section 123 of the Customs Act, the appellant has failed to discharge the burden that the goods in question are not imported goods or have been imported. Therefore, she further submitted that the document dated 14.04.2015 of Shah jewellers, produced is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act.In the impugned order as well as adjudication order, nowhere it has been established that there was a reasonable belief that the goods in question are smuggled goods which is the bone contention to invoke Section 123 of the Customs Act, 1962. Further, the appellant has also brought on record that the marking on gold in question is freely available in the Indian market and at the website www.indiamart.com, the goods can be purchased by any Indian. 13. In that circumstances, revenue has failed to discharge that they are initial burden that on reasonable belief that the goods in question are smuggled goods. Further, it has been found that only market enquiry was done for valuation and purity of the goods in question. No fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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