TMI Blog2022 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant that the same is procured through licit means and the appellant has produced a tax invoice to that effect. The decision in the case of ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) VERSUS M/S ITS MY NAME PVT LTD [ 2020 (10) TMI 237 - SUPREME COURT] is directly applicable to the facts of this case, where it was held that Allegations in a Show Cause Notice are merely allegations, till proved, in adjudication. Were there to be no material, whatsoever, justifying clearance of the imported goods, such allegations may, conceivably, have a part to play, in examining the request for provisional release. The balance of convenience in allowing provisional release lies in favour of the appellant - provisional release of the seized gold allowed subject to conditions imposed - appeal allowed. - Customs Appeal No. 70090 of 2022 - FINAL ORDER NO.70082/2022 - Dated:- 28-3-2022 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Sh. Vineet Kumar Singh, Advocate Present for the Respondent: Sh. B.K. Jain, Authorized Representative ORDER The appellant is in appeal against the impugned order wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submits that the import of gold is not prohibited; therefore, it is a statutory obligation on the part of the department for provisional release of the seized gold under Section 110A of the Act. He also relies on the decision of the Hon ble High Court of Delhi in the case of Additional Director General (ADJ.) vs. Its My Name Pvt Ltd 2021 (375) ELT 545 (Del), which has been affirmed by Hon ble Apex Court reported in 2021 (375) ELT A160 (SC), therefore, the impugned gold is to be released provisionally by putting conditions for provisional release to the appellant. 4. On the other hand, the ld. AR opposes the contention of the ld. Counsel and submits that in terms of Section 123 of the Customs Act, 1962, the gold is a notified item and the appellant is required to produce the source of procurement of the gold by licit means. The seller of the gold has denied the fact that the gold in question is not the same which has been sold by him. Therefore, the appellant has failed to show the source of procurement of the gold by licit means. In that circumstance, the gold is absolutely confiscated by the authority below. 5. Heard the parties and considered the submissions. 6. We f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court of Delhi in the case of Additional Director General (ADJ.) vs. Its My Name Pvt Ltd (supra) wherein the Hon ble High Court has observed as under: 73 . We may hasten to add, here, that our view, in this regard, does not discountenance, in any manner, the allegation, of the DRI, that the entire quantity of 51172.4 grams of gold jewellery was, in fact, being smuggled into India, or that it was, consequently, liable to confiscation. That is a matter to be decided in adjudication. Provisional release of the gold jewellery does not, in any manner, inhibit the adjudicating authority from holding that the jewellery was, in fact, liable to confiscation, or passing appropriate orders in that regard. It is precisely for this reason that, at the time of provisional release, the importer is required to furnish a bond, covering the full value of the imported goods, along with security, in accordance with law. Allowing provisional release of the seized gold jewellery does not, therefore, interfere, in any manner, with due adjudication of the show cause notice, or with the jurisdiction, of the adjudicating authority, to hold the gold jewellery liable to confiscation. The mere f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement made and signed by a person before any gazetted officer of (1) customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. The provisions of sub-section (1) shall, so far as may be, apply (2) in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. A Division Bench of this Court has, speaking through A.K. Sikri, J. (as he then was) held, in J K Cigarettes Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and cross-examination has to precede re-examination. 21. It is only, therefore,. (i) after the person whose statement has already been recorded before a Gazetted Central Excise Officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for cross-examination, can arise. (Emphasis Supplied) We express our respectful concurrence with the above elucidation of the law which, in our view, directly flows from Section 138B(1) of the Act - or, for that matter, Section 9D of the Central Excise Act, 1944. 77 . The framers of the law having, thus, subjected statements, recorded under Section 108 of the Act, to such a searching and detailed procedure, before they are treated as relevant in adjudication proceedings, we are of the firm view that such statements, which are yet to suffer such processual filtering, cannot be used, straightaway, to oppose a request for provisional release of seized goods. The reliance, in the appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of balance quantities of the jewellery, the Assessing Officer was presented with necessary documents, such as, shipping bill along with invoices, permission for taking goods for exhibition, export declaration form of the appellant, Customs endorsed colour photographs of jewellery, the bill of entries for re-import along with packing list covering details of jewellery items of import along with the photocopies of the jewellery. We find that authenticity of the goods being re-imported being same as had been exported by two shipping bills as mentioned above, has not been doubted by the Department. We find that the Department has not adduced any evidence to contradict the fact that the same jewellery has been imported by the appellant which had been exported for exhibition purpose. At this juncture, we are only examining whether the import of the subject seized gold jewellery was in violation of any of the provision of Customs Act, 1962 and Import-Export Policy of 2015-2020 or whether it was a legitimate re-import of exported goods. We find that the Assessing Officer after scrutiny of all the relevant documents and on satisfaction has allowed the clearance of re-imported gold jewell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 908 gms. is concerned, it has been shown to us by Learned Advocate that out of the 25 gold bars weighing 1 kg. each is concerned, 22 gold bars have been imported by the appellant under Advance Authorization Scheme vide Bill of Entry No. 2873828, dated 17 April 2019. The bill of entry for import have been assessed at the nil rate of duty under Advance Authorization No. 0510409190 dated 4 January 2019 for import of gold bar having purity of 0.995. It‟s a matter of record that 50 gold bars had been imported by the appellant under Bill of Entry No. 2873288, dated 17 April 2019 which are having specific and unique bar number. On verification of the unique bar number of the seized gold bars with the gold bars imported vide above- mentioned bill of entry having packing list dated 15 April 2019 for the invoice H-3470, we find that 22 gold bars weighing 1 kg. each totaling 22 kg., absolutely tallies with the gold bar numbers which was imported under the Bill of Entry No. 2873288. It is also a matter of record that the main Karigar‟ of the appellant who was supervising manufacturing of gold jewellery has categorically mentioned that from the imported gold bars he has made jewell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. The order of the Hon ble High Court in the case of Additional Director General (ADJ.) vs. Its My Name Pvt Ltd (supra) has been approved by the Hon ble Apex Court reported (supra). 10. Further, we take note of the fact that the Hon ble Apex Court in the case of Union of India Ors. vs. M/s Raj Grow Impex LLP Ors in Civil Appeal Nos. 2217 to 2219 of 2021 (arising out of SLP(C) Nos. 14633-14634 of 2020 and 1037 of 2021) vide Order dated 17.06.2021 has observed that restricted goods are deemed as prohibited goods. 11. We have gone through the said decision and the facts of the said cases are entirely different as in those cases the import of pulses was subject to annual quota of certain quantities as notified by the Director General of Foreign Trade and the assessee was not allowed to import any pulses without license and beyond the permissible quantity. In these circumstances, if violation of the said condition subjected to prohibition, but in the case in hand, gold is only notified item under Section 123 of the Customs Act, 1962 wherein the burden of proof of procurement of the said gold lies on the appellant that the same is procured through licit means an ..... 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