TMI Blog2021 (12) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the gold weighing 351.54 gms was mentioned to have been sent to M/s Ratuaria Jewellers for making jewellery. Accordingly, the work order dated 15/10/2014 stands corroborated in view of this letter of M/s. DI Gold Designee Jewellery. It was also corroborated that Ratusaria since could not get the jewellery made, hence, returned the said gold quantity of 351.54 gms. vide delivery note of 30/10/2014. It has been found clarified that it was not necessary to return the gold of same marking. Section 123 of Customs Act cannot be resorted to otherwise also as already discussed above, there is ample evidence for discharging the said burden by the appellants in terms of said Section 123. The present, therefore becomes a clear case where department has failed to established that the seized foreign marked gold was smuggled one. Merely because the foreign marked gold is involved, the same is wrongly held to be smuggled one - In the present case, when apparently, the show cause notice proposing confiscation of goods seized under Section 110 of Customs Act was issued after one year from the date of seizure. The show cause notice itself gets hit by limitation as the show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts herein are engaged in jewellery business. They used to send parcels of gold for job work of jewellery through the known trade practice called Angarias and also usedto receive the gold/jewellery through the same mode. Department got an information about a consignment booked by Airway Bill No. 589-56652551 of Jet Airways destined to Bombay to might have contained gold bullion of foreign origin which might have been smuggled into India. The said consignment was put on hold on 21/10/2014 and CELEBI, the custodian of warehouse, was instructed to not to clear the shipment without the permission of Custom Department. The said consignment was booked in the name of Shri Onkar Nath Singh. The Custom Officers, in the presence of Shri Onkar Nath Singh brought the consignment from CELEBI warehouse to new Custom House on 11/11/2014 and examined the same in presence of Shri Onkar Nath Singh and two more independent witnesses. 1.1 The consignment was found containing two tin boxes collectively weighing 11.8 kgs containing 22 18 small parcels respectively. All these parcels were detained for further investigation vide Panchanama dated 11.11.2014. To verify the yellow metal to be gold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but only two parcels thereof bearing no. 4 6 containing gold bar weighing 351.54 Gms. and 163.8 Gms respectively were found engraved with foreign marked that is Valcambi Suisse and Esayeur Founder respectively. All total number of parcel were put on hold on 21/10/2014 and were seized on 27/11/2014. All other parcels except the above said 4 6 were released on 18/12/2014. Since, the seizure of the said two packets was under Section 110 of Customs Act dated 27/11/2014, the Show Cause Notice under Section 124 of the Customs Act, 1962 was required to be served upon the appellants within six months thereof, else the goods should have been returned to the person from whose possession they were seized. In the present case, the period of six months expired on 27/05/2015 but the show cause notice was issued on 05/11/2015 that is almost after one year of the seizure. Hence, Show Cause Notice itself is alleged to be barred by time. 3.1 On behalf of M/s DI Gold M/s Ridhi Sidhi Jeweller, in addition, it is submitted that the show cause notice was not properly served upon them nor at the correct address. Also too short a time was given to them to mark their presence before the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. It is submitted that serving notices on the wrong addresses and giving a short notice just 5 to 7 days not providing the opportunity of hearing any remand confirmed and penalty imposed in the giving circumstances is liable to be set aside on this score, it is based upon on behalf of all the appellants that the recovered gold was sent through Angariya which is a normal trade practice among the jewellers in the country. The quantity recovered is too small from a jeweller s perspective to be alleged as the case of smuggling. The evidence collected through the investigation is sufficient to prove that the gold was being transferred in the aforesaid normal course of trade. No evidence has been brought on record about the gold to have been smuggled one. The findings of the Adjudicating Authorities are alleged to be merely presumptive in nature, accordingly, are prayed to be set aside and the appeal is prayed to be allowed. 4. To rebut these submissions, learned DR has mentioned that the requisite documents were never produced by the appellants herein. In fact M/s. DI Gold and M/s. Ridhi Sidhi never co-operated the Department. Despite the issuance of several notices, they faile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parcels. Shri Shravan Kumar also corroborated the transaction as deposed by Shri Onkar Nath Singh. Shri Pradeep Ratusaria of M/s Ratusaria Jewellers vide his statement accepted the same in addition informed vide his letter dated 01/04/2015 to have received said gold of M/s DI Gold M/s Ridhi Sidhi Jeweller for manufacture of jewellery. The job work whereof was to be got done from M/s J.K. Jewells, M/s Classic Ornament M/s Anil Jewells. All situated in Mumbai and accordingly, both the impugned gold pieces and alongwith the third one weighing 138.38 gms. were booked with Mr. Shravan Kumar of M/s Jai Mata Di to be delivered at Mumbai. 5.3 I further observe that though M/s DI Gold designer jewellery and M/s Ridhi Sidhi did not make them available before the investigating officer in furtherance of summon issued to them but from the time date chart as mentioned in the appeal, it is abundantly clear that the notices were served for just five to seven days time for both these appellants to appear and in fact, most of them were received by these appellant after the date of hearing mentioned therein use to expire. In such circumstances, the findings of the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents annexed therein are absolutely sufficient for discharging the burden as stands rest upon the appellants in view of Section 123 of the Customs Act. I also observe that the allegation of smuggling are based on the mere fact that the impugned parcels were containing gold of foreign origin but there is no denial to the fact that much of the gold in Indian market is of foreign origin. It was accordingly for the department to investigate that no requisite duty has been paid on the impugned gold. Apparently and admittedly, there is no such evidence on record, I am therefore of the opinion that since the appellant have already disclosed the source of acquisition of gold in question, the initial burden of showing the licit possession of the impugned gold stands discharged by the appellant. The burden stands shifted upon the Revenue to show that the goods proposed to be confiscated were smuggled one. 6.1 I rely upon the decision of this Tribunal in the case of Krishna Kumar Dhandia vs. Commission of Customs, Calcutta 2007 (2019) E.L.T (736), I also draw support from the decision of Hon ble High Court of Mumbai in the case of Union of India vs Imtiyaz Iqwal Pothiawala report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery challans etc. have not been considered by the Revenue. There is no apparent denial that the foreign origin gold can licitly also be available in the market. Hence the mere fact that gold was having foreign engravings is opined to be highly insufficient a reason to believe the gold to be smuggled one. 6.2 Hence, I opine that Section 123 of Customs Act cannot be resorted to otherwise also as already discussed above, there is ample evidence for discharging the said burden by the appellants in terms of said Section 123. The present, therefore becomes a clear case where department has failed to established that the seized foreign marked gold was smuggled one. Merely because the foreign marked gold is involved, the same is wrongly held to be smuggled one. I draw my support from the decision of the Tribunal in the case of Nitya Gopal Vishwas vs. Commissioner of Customs(Prev), Kolkata reported as 2016 (344) E.L.T. (209) Tri. Kolkata. Otherwise also, in the light of liberalized policy of Central Government, it cannot be held that all foreign marked goods being bought and sold in India are of smuggled nature. I also rely upon the decision in case of Giridhari Dubey vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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