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TMI Blog2025 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of DRI seized certain quantity of foreign mark gold from the possession of one Shri V. Ramu alias Ramaiah under the reasonable belief that they were liable for confiscation. Thereafter, DRI conducted further investigation and on conclusion thereof, the show cause notice, quoted supra, was issued to Shri V. Ramaiah, V. Sudhakar Rao and Shri N.V.Subrahmanyam, proposing interalia for confiscation of eight irregulary shaped pieces of foreign origin gold, packing material and also for imposition of penalty under Section 112(a) and 112(b)(i) of Customs Act, 1962. Shri V. Ramaiah and Shri V. Sudhakar Rao were also directed to show cause vide said show cause notice as to why 6 pieces of gold of foreign origin weighing 600 gms should not be confiscated along with packing materials used for consignment and why penalty should not be imposed on them. Shri V. Sudhakar Rao and Shri N.V. Subrahmanyam were also issued show cause notice asking why penalty should not be imposed on them under Section 117 of Customs Act. 3. Learned Counsel for the appellant raised a preliminary objection regarding the issue in the appeal relating to jurisdiction matter. Hon'ble Supreme Court in the case of Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-19 dated 30.08.2018 issued by M/s Phusaram Mundhra Pvt Ltd., Chennai. Finally, after taking into consideration of the evidence gathered during the investigation of the case, the above referred detained gold of 1500.00 grams vide panchanama dated 31.08.2018 was released by the DRI officers and handed over under panchanama dated 11.02.2019 to the notices i.e Shri V. Ramaiah and Shri V. Sudhakar Rao. Later, a show cause notice dated 22.02.2019 was issued to Sri Vemuru Ramaiah, Sri Vemuru Sudhakar Rao and Sri N.V. Subrahmanyam asking them to showcause as to why 8 irregularly shaped pieces of gold of foreign weighing 1027.19 gms totally valued at Rs. 31,02,915/- seized under panchanama dated 31.08.2018 should not be confiscated under Section 111 (a), 111 (b), 111 (d) and 111 (l) of the Customs Act, 1962 along with packing material and also proposed penalty on them under Section 112(a) and 112(b) (i) of the Customs Act, 1962. In the same show cause notice, Shri Vemuru Ramaiah and Sri Vemuru Sudhakar Rao were also asked to showcause as to why 6 pieces of gold of foreign origin weighing 600 gms totally valued at Rs. 18,12,468/- seized under panchanama dated 31.08.2018 under Section 111 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In appeal no. C/ 30403/2022 filed by Shri N V Subrahmanyam, Orderin- Appeal No. VJD-CUSTM-000-APP-007-22-23 dated 22.06.2022 , appeal is rejected and upheld the Order-in-Original. 12. Learned Counsel for the appellant relies on the Co-ordinate Bench decision in the case of Adil Majeed Banday Vs Commissioner of Customs, Amritsar [2021 (378) ELT 540 (Tri - Chan)]. In this case, Co-ordinate Bench held that reasonable belief as to gold being smuggled to be established first by Revenue to invoke Section 123 of Customs Act, 1962. Such reasonable belief is nowhere established by Revenue. But, in this case, Respondent/Revenue established prima facie that gold is smuggled since document/invoice produced by appellants is not related to confiscated gold. It is also important to mention that statement regarding such gold is contradictory and appellant has failed to establish that the gold is not smuggled. Section 123 of Customs Act, 1962 is reproduced below for the ease of reference: 123. Burden of proof in certain cases. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty under Section 112 of Customs Act, 1962 is bad. This case law is also not applicable in this case, since, appellants are not denying connection with seized gold. Here, they claim that the gold is their gold, but fail to establish properly. 16. Learned Counsel for the appellants, relies on another Co-ordinate Bench in the case of Commissioner of Customs, Lucknow Vs Sanjay Soni [2022 (381) ELT 509 (Tri-All)], in which it is held that penalty is not imposable only on the basis of incriminating statement made by one of the co-accused in absence of other corroborative evidence. This is also not applicable, since in that matter appellant was given cogent explanation. But, in this case, statements are contradictory and documents/invoices which are produced are not related. 17. Union of India Vs Imtiaz Iqbal Pothiwala [2018 SCC online Bom 4220] relying upon this case law, Learned Counsel for the appellant states that confiscation not justified merely on a confessional statement under Section 108 of Customs Act, 1962. This case law is not applicable in these appeals, since confiscation is not based on confessional statement only but also based on investigation and other evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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