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TMI Blog2024 (12) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs, P & I Branch, CC(P), WB, Kolkata who directed Customs officers to form a team headed by the Superintendent of Customs, p & I Branch. The team reached the spot i.e. M/s. Gouri Gold House at Barasat at about 16.00 hours on 24/10/2016. Meanwhile two independent witnesses were called by the Customs officers. The officers informed the witnesses in brief about the specific information received and requested them to witness the search operation based on the information and they agreed to the same. The officers on reaching the premises of M/s. Gouri Gold House asked for the owner of the said premises. A person named Shri Prasanta Sarkar came forward and claimed to be the owner of the said premises. The officers introduced themselves to the owner and also informed him about the purpose of visit, which was understood by him. The officers showed him Search Warrant issued by the proper authority. Owner, Shri Prasanta Sarkar allowed the officers to conduct the search by putting his signature over Search Warrant. The officers first offered the owner to search themselves, but the owner refused to do so. 3. The officers then searched the said premises in presence of the owner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medium size believed to be gold of foreign origin having inscription as "Valcambi SUISSE 100g 995.0 ESSAYEUR FOUNDER" with serial number AA123294 of weight 50.02 grams, (12) 01 (one) cut piece of yellow metal bar believed to be gold of foreign origin having inscription as "H.ARGOR.SA" of weight 218.54 grams, alongwith one file containing purchase bills (Pages 01 to 18), Exercise book containing sales record (pages 01 to 91, entry in pages 03 to 86 and rest is blank) 01 Nokia Mobile-Model 1110i, IMEI No.-357697/01/484808/1, With SIM card having Mob.No.7278638554 (AIRCEL) of NCV form the possession of the owner namely Mr. Prasanta Sarkar, the said Noticee No.1. The Customs Officers asked the owner to produce licit documents in connection with the said recovered yellow metal believed to be gold recovered from his premises, but he failed to produce the same. Thereafter, the Customs officers served one spot Summons under Section 108 of the said Act to Mr.Prasanta Sarkar, and also requested two independent witnesses to accompany them to P&I Branch, CC(P), W.B., Kolkata, Custom House, at 15/1 Strand Raod, Kolkata alongwith recovered goods for other customs formalities as the same was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered goods under Section 110 of the said Act, on the reasonable belief that the same had been smuggled into India and are liable to confiscation under Section 111(b) & 111(d) of the said Act. The persons engaged in this case are liable to be prosecuted under Section 135 of the said Act. 8. Thereafter, statements of the appellants were recorded. A show cause notice was issued to the appellants for confiscation of the 12 pieces of gold recovered from the search and for imposition of penalty. 9. After affording two opportunities the adjudicating authority held absolute confiscation of the gold in question and held the gold in question liable for confiscation and imposed penalty on both the appellants." 3. The said order was challenged before the Ld. Commissioner (Appeal) who dismissed the appeal as time barred. On appeal before this Tribunal, this Tribunal remanded the matter back to the Ld. Commissioner (Appeal) vide Final Order No. 77416-77417/2023 dated 3rd November, 2023 to decide the issue on merits considering the submissions made by the Ld. Counsel for the appellant and the Ld. Commissioner (Appeal) passed the impugned order affirming the order passed by the Ld. Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant it is seen that the seizing officers have certainly failed to comply with such circular thereby rendering the seizure and the subsequent SCN proceedings thereto bad in the eyes of law. Thus the Impugned Order arising out of such conjectures & surmises is beyond the purview of law The key element U/s. 123 of CA,'62 is 'reasonable belief, the officer exercising its reasons of believe must be acquainted of the reasons to belief that the same is illegally imported into the country whereof mere possession cannot be a factor to determine the same and even the same must be factor to be exercised over and above reasons to suspect, if the proper officer exercising jurisdiction U/s. 110 of CA,'62 acts on preliminary suspect of being illegal importation must come up with cogent reasoning and/or evidences thereof to substantiate such. In the present case, there is no such finding being adhered to whereof it can at times, thus, until or unless, it is on record to prove credible evidence to show the origin of the so-seized goods, the point of purity can only create an assumption and presumption, in corollary whereof, confiscation is not at all warranted. Moreover, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the investigating authority has simply failed to negate the document so produced and no contrary evidence could be brought forth against your appellant to establish their role in forging the same. Despite the said fact, penalty in terms of Section 114AA of the CA, 62 has been imposed upon the appellants. It is astonishing as to how the documentary evidence so produced for purchase of gold in the instant case were investigated and cross verified with other persons as well. Despite finding the same to be legitimate and correct the investigating authority has concocted a story wherein the appellant is alleged to have produced legitimate documents with regard to 3 gold bars just to misguide the investigating officers. No cogent reasoning has been put forth by the adjudicating authority as well so as to prove the alleged role of the appellants that makes them liable for penalization in terms of Section 114AA of the CA, '62. As regards for the rest gold (9 pcs) Shri Prasanta Sarkar had duly deposed the facts pertaining to procurement of the same which remains undisputed by any contradictory statement or finding. The appellants state that mere presence of foreign marking in gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereof, it can be stipulated the so-seized goods when seized was under proper reasonable belief that the same has been illegally imported. Section 111(d) of CA,'62, carries its key element as 'prohibition being imposed by any act or any other law for the time being in force' of any goods which is imported or attempted to be imported. In the present case, gold being the article of seizure, it is ipso facto clear from the statute that such item is importable subject to conditions as is imposed and the appellant has already deposed the mode and method of procurement of the subject gold. Further, it is apt to be mentioned that no confessional statements has been made by the appellants herein or by any other persons in course of investigation which might in any way show that the appellants were involved in illegal importation of foreign origin. Though the gold bars bore inscriptions however, the same does not in any way prove that the appellants have smuggled it or illegally procured it. No evidence has also been adduced to the effect to prove the mens rea of the appellant in the alleged act of smuggling. Hence, the Order upholding the confiscation of goods as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y failed to comply with such circular thereby rendering the seizure and subsequent, the proceedings thereto bad in the eyes of law. The key element under Section 123 of the Customs Act, 1962 is reasonable belief. The officer exercising its reason of belief must be acquainted to the reason of belief that same is illegally imported into a country whereof mere possession cannot be a factor to determine the same and even the same must be a factor to exercise over and above the reason of suspect if proper officer exercising jurisdiction under Section 110 of the Customs Act, 1962. 13. Acts on reasonable belief, suspect of being illegal importation must come up with cogent reasons and or evidences thereof. In this case, there is no such findings being adhered to whether of it can be terms thus until and unless it is on record to prove credible evidence to show the origin to Show Seized goods. The point of purity can only be create and assumption and presumption whereof confiscation is not at all warranted. 14. Moreover, the appellant has produced certain documents in support of his claim to discharge its onus in Section 123 of the Customs Act, 1962 which made the goods subject to releas ..... 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