TMI Blog2024 (3) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... nki vs UOI [ 2008 (12) TMI 31 - SUPREME COURT] that where the accused/noticee disputes the voluntary nature of his statement, the onus is on Revenue to prove the voluntary nature of the statement recorded. Thus, the statement as recorded of the appellant on 01.02.2020 is not voluntary in nature. The SCN is bad and hit by limitation as the same has been issued after more than six months from the date of seizure as required u/s 110(2) of the Act. In this view of the matter, the appeal is allowed and the impugned order is set aside. Accordingly, the gold in question shall be released to the appellant forthwith, and if already sold, to return the sale proceeds, with interest as per Rules. The appeal is allowed in the aforementioned terms. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri P. Rama Krishna, Advocate for the Appellant. Shri Pradeep Saxena Shri A. Rangadham, ARs for the Respondent ORDER The brief facts are that the appellant Mr. Tabrez Esmail Suiwala was at RGI Airport, Hyderabad on 01.02.2020 for boarding Flight No. AI620 from Hyderabad to Mumbai. The appellant had checked in and had obtained boarding pass. The GHIAL Security and Vigilance detected three pieces of yellow meta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers informed the appellant that they have reasonable belief that the said gold appears to be liable for confiscation and accordingly, they intend to seize the said gold. The officers seized the gold being three cut pieces totally weighing 1000 gms valued at Rs.42,22,000/- along with the packing material. The said pieces of gold along with the packing material were put in a metal box (marked as M1) and thereafter, wrapped with cloth and sealed in the presence of the witnesses. Separate seizure memo was also drawn duly signed by the appellant and the Panch witnesses. 3. The statement of the appellant was also recorded at the time of drawal of Panchanama, wherein, the appellant inter alia stated that he is a resident of R.No.5, Wing A, First Floor, Aloo Paroo Building, Lady Jamshedji Road, Mahi (West), Mumbai 400 016 . He has studied up to class 10. The appellant agreed with the contents of the Panchanama. He further stated that he knew Mr. Sher Khan for the last two years, who was introduced by his brother-in-law Mr. Sohail who stays in Hyderabad. Mr. Sher Khan informed him that three cut pieces of gold are of foreign origin and that he got it from someone else. Mr. Sher Khan has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 01.02.2020, however disputed his statement recorded at the time of seizure that the same was not freely given and that he had, under undue influence and duress, signed on the dotted line of the statement, as prepared by the officers. It was also urged that a copy of Panchanama and the statement recorded as well as seizure memo were not given to him and the same has caused prejudice to the appellant and further the proceedings are vitiated. The copies of these documents have been given to the appellant only along with the SCN, which is in violation to Sec 100(6) 100(7) of CrPC. Further urged that no valid seizure was made and there was no seizure order/memo issued. Therefore, the proposal for confiscation of gold is not sustainable. He further urged that the act of taking possession of gold by the Customs officers under Sec 110 of the Act does not amount to seizure under Sec 110. In the absence of proper seizure, no proceedings can be undertaken for confiscation, being without jurisdiction. It was further urged that the siezure of the three pieces of gold is a town seizure, as the appellant was travelling from domestic terminal from Hyderabad to Mumbai on the domestic sector flig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which provides that where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized, provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months. 8. The SCN was adjudicated vide OIO dt.01.12.2020 by the Additional Commissioner, ordering absolute confiscation of the seized gold under Sec 111(d), 111(i) 111(j) of the Act. Further, consolidated penalty of Rs.8,50,000/- was imposed on the appellant under Sec 112(a)(i) and Sec 112(b)(i) of the Act. 9. Being aggrieved, the appellant preferred appeal before the learned Commissioner (Appeals). The Commissioner (Appeals) was pleased to uphold the order of absolute confiscation but was pleased to reduce the penalty imposed to Rs.4,50,000/-, taking into account the value of gold confiscated. Being aggrieved, the appellant is before this Tribunal. 10. Learned Counsel for the appellant inter alia urges that the SCN being admittedly issued beyond the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifically, he stated that he was not having any bill/invoice/receipt in support of the licit acquisition of the gold in question. The appellant also did not offer to file the proof of licit acquisition in due course. Thus, the gold was seized on the reasonable belief of it being smuggled as there were foreign markings on the gold pieces, which is not disputed. Further, under Sec 123, only a reasonable belief is required to be discharged by the department for initiating action by way of seizure and further proceedings. The appellant clearly indicated in his statement that the pieces of gold he was carrying was smuggled in nature. Further, even in the adjudication proceedings, the appellant has failed to give any evidence of the licit nature of acquisition and hence, order of confiscation and penalty is justified and fit to be upheld. Reliance is placed on the ruling of Hon ble Kerala High Court in CC, Cochin vs Om Prakash Khatri [2019 (366) ELT 402 (Ker)], wherein absolute confiscation was upheld of even unmarked gold that too when the seizure was effected at hinterland (town seizure) when the evidence on record indicated that it was smuggled gold and the person intercepted was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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