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TMI Blog2023 (10) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... nd irregularly imported thus rendering the seized goods out of the purview of customs Act, 1962. He also dropped the proceedings initiated against the Respondents Sri Maran Saha, Shri Mantosh Dhar, Shri Vinod Kale, Shri Vipul and M/s Swarnalika Jewellers. Aggrieved against the impugned order, the Appellant (Department) has filed these appeals. 3. In their grounds of appeal, the Appellant has made the following submissions: (i) In the instant case it has been found that DRI officers have recovered metal, 16 (sixteen) sticks of gold coated with silver colour substance, 6 (six) bangles of gold and one strip of chain made of gold which clearly indicated the intention of Shri Maran Saha i.e. to hide its actual identity so that it looks like silver sticks. (ii) During the course of investigation, Shri Mantosh Dhar had failed to produce any Purity Certificate issued by the M/s Sidhanath Gold & Silver Refiner, though such certificates were reportedly issued by the said M/s Sidhanath Gold & Silver Refiner. The worker of M/s Sidhanath Gold & Silver Refiner named Shri Vinod kale had stated in his statement dated 08.01.2014 that he had issued the Cash Memos as per direction of the shop ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The Cash Memos dated 18.10.2013 seized from the possession of Shri Maran Saha were of purchase of old silver. It was found on enquiry that they relate to different types of silver ornaments sold to Shri Mantosh Dhar in quantities 934 gm and 920 gms for amounts Rs.57,711.6 and 56,304.00 respectively. Hence, in no way they are related to the gold seized from the possession of Shri Maran Saha. (ix) It cannot be concluded summarily that the burden of proof under Section 123 of the Customs Act, 1962 has been discharged by the Appellants (x) The Adjudicating Authority had failed to appreciate that the signature of Sri Vinod Kale appearing on the "ISSUE & CASH MEMO" of M/s Sidhanath Gold and Silver Refiners exactly matches with the signature of Vinod kale made in his statement recorded by the DRI Officers. It was never mentioned that Shri Kale could not write Hindi or English. Instead, he stated in his statement that he could not write Hindi or English. (xi) It has been mentioned in the SCN that Shri Mahesh More of Subhash Avenue Bye Lane, Dinobandhu Market, Ranaghat, Nadi, who was supposed to receive the gold articles from Maran Saha at Kolkata Airport on 13.11.2013, had stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons that: i) Nothing was concealed during interception of Maran Saha at the airport. On the 1st hand query whether he was carrying any costly item Sri Saha had told that he was carrying gold and silver. The goods were also not concealed in any manner but kept in his luggage. ii) When search was conducted at the noticee shop after seizure of gold, Sri Mantosh Dhar claimed his valid ownership of the gold and handed over all the documents in support of his claim. I find the documents resumed from the shop of M/s Swaratika Jelwllers in form of register of otherwise are of varied nature which have interrelation and corroboration amongst them and are maintained for a considerable period of time which has not being categorically alleged to be manufactured documents to turn down the noticee's claim. No concrete evidence in the instant case suggests that the seized gold was of foreign origin. iii) The SCN itself confirmed that the old gold was deposited by different customers against received voucher. I find that the investigation was able to track two person namely Sri Naren Banik and Sri Rupak Roy who admittedly in their statement dated 09.01.2014 have confirmed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pul Yelpale co-worker of the refinery firm had written the statement of Sri Vinod kale. I find that in reply to the SCN it has been pointed out by the noticee and further submitted orally during the PH that no summon were issued to Sri Vipul Yelpale and the summon dated 08.01.2014 was issued to Sri Vinod Kale at his residence. It has also been recorded in the SCN that Sri Vinod kale was unable to write in in English, hence a co-worker of the Refinery Sri Bipul Yelpale has written the statements for Sri Vinod Kale. I find from the records that no summon has been issued to Sri Vipul Yelpale and no investigation has been conducted against him whereas I find in the Show Cause Notice he has been made a noticee. I find no valid reason for issuance of instant SCN against Sri Vipul Yelpale. I further find that in the voluntary statement Sri Vinod Kale has stated that the "Issue & Cash Memos" were issued by him & Sri Vipul Yelpale. I find that the "Issue & Case Memos' were issued by Sri Vinod Kale in English vernacular which is contrary to the claim of the investigation. However, ongoing through the submission/voluntary statement of Sri Vinod kale I find that he has admitted to have taken u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers reported in 1983(14)ELT1715 (DEL), which elaborately dealt with Town seizures. The relevant portion of the Order is reproduced below: "54. The other question which was argued before me was that the customs officer did not act on any reasonable belief when he searched the petitioner's premises on 15-12-1967 and seized the goods. Section 110 opens with the words "if the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods". What is the meaning of "reasonable belief"? Did the officer entertain reasonable belief in the facts and the circumstances of this case? This is the other question to be decided. The Supreme Court has said that reasonable belief is a pre-requisite condition of the power of seizure that the statute confers on the officer. (See Collector of Customs v. Sampathu Chetty, AIR 1962 S.C. 316). The preliminary requirement of Section 110 is that the officer seizing should entertain a reasonable belief that the goods seized were smuggled. 55. Reasonable belief as required by Section 110 refers to the point of time when the goods in question are seized and not to a stage subsequent to the act of seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or prohibition imposed by statute. There was nothing to suggest the foreign origin of the goods. There was nothing to suggest the illegal importation of the goods into the country. 60. The goods must be smuggled goods. The word `smuggled' means that the goods were of foreign origin and they had been imported from abroad. Only then does the presumption under Section 123 arise. The goods themselves did not suggest that the petitioner was an old smuggler or a dealer in smuggled goods. If there was such information with the customs, they ought to have disclosed it. The goods themselves did not suggest any illicit importation. Nor was there any inscription on the goods which could be the basis of the reasonable belief that the goods were of foreign origin. There was nothing in the appearance of the goods to suggest that they had been newly manufactured and brought into this country very recently from another country. In a word there was nothing absolutely from which inferences about their origin or recent import could arise. It was not a case where large quantity of gold with foreign markings was found hidden in the trousers of the accused as happened in Hukma v. State of Rajastha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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