9911796707
TMI Blog2025 (1) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Shri. Souvik Mondal and Shri. Prahlad Kumar Das, (hereinafter referred to as "appellant-2") challenging the Orders- in-Appeal dated 08.08.2022 and 10.08.2022 passed by the Ld. Commissioner of Customs (Appeals), Guwahati. As both the appeals have a common issue, they are taken up together for decision by a common order. 2. These appeals pertains to seizure of 7 pieces of fine gold weighing in total of 449.300 gms valued at Rs. 17,46,428/- seized from the possession of Shri Souvik Mondal on the ground that the said gold pieces were smuggled in nature and illegally transported by the Appellants without any valid documents for its licit purchase. In his statement, the appellant-1 mentioned one Shri Prahlad Kumar Das (appellant-2) as the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants cited the decision in the case of Rara Brothers V. M.L. Dey [2000(126)E.L.T.425], wherein it was held that seizure of silver under Section 110 of Customs Act, 1962 without any reasonable belief that they are smuggled in nature, is not sustainable in law, as seizure must follow only if the proper officer has reason to believe that goods are liable for confiscation and not otherwise and hence all the proceedings consequent upon seizure were held to be void and illegal. 7. The appellants also cited the decision in the case of Raj Kumar Jaiswal [2006(204)E.L.T.561(CAL)], wherein it was held that the initial onus is upon Revenue to prove foreign origin at first instance and if it is proved, it must further be proved to be smuggle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld seized at accused's shop in the city and not while being smuggled either at Port or at Airport-Seizure based on information received and for non-availability of documents pertaining to gold, in shop at time of investigation-Nothing on record to suggest that prices seized having any foreign markings-Also, documents produced to show how accused came in possession of gold and documents, on investigation, found to be genuine-Further, Commissioner refrained from imposing any penalty under Section 114AA of Customs Act, 1962- No reasonable belief for seizure of gold and Currency hence confiscation thereof and imposition of penalty under Section 112, Customs Act, 1962, not sustainable-Impugned order set aside-Section 111 and 123 of Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not of smuggled in nature; As the appellants could not discharge the obligation cast upon them under section 123 of the customs Act, 1962, the gold has been rightly confiscated and penalties imposed. Accordingly, he supported the impugned orders. 13. I observe that 7 pieces of fine gold weighing in total of 449.300 gms was seized from Appellant-1 viz. Shri Souvik Mondal on the ground that the said gold pieces were smuggled in nature and illegally transported by the Appellants without any valid documents for its licit purchase. However, I observe that the department has failed to produce any evidence to corroborate that the gold seized was smuggled in nature. No evidence has been adduced to the effect to prove the mens rea of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the investigating officers have not given any opportunity to them to produce the relevant documents for the licit purchase of the gold. I find that the investigation officers have not produced any evidence contrary to negate the claim of the appellants. Accordingly, I hold that the appellants have submitted sufficient evidence to establish that the gold under confiscation were purchased from indigenous sources. Accordingly, I hold that the confiscation of the gold in the impugned order is legally not sustainable. I find that this view is supported by the order passed by Tribunal in the case of Prasanta Sarkar & anr. v. vs Commissioner of Cus. (Prev.), Kolkata, vide Final Order No.77799-77800/2024 dated 11.12.2024 in Appeal No. C/75260/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s when seized was under proper reasonable belief the same has been illegally imported in violation of specified Rule thereof. Further, the provision of under Section 111(d) of the Act was also involved for confiscation of the goods, the said provisions are also applicable as provisions 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. 16. In this case the gold being importable subject to conditions as imposed and appellant has already produced the mode of procurement of the said goods. Therefore, the goods are not liable for confiscation under Section 111(d) of the Act. Further, the statements made by the appellant during the course of investigation has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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