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TMI Blog2025 (5) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti Smuggling Unit, Guwahati Customs Division, for further action under the Customs Act, 1962. The GRP also handed over the Test Reports of the seized gold conducted by SB Assaying and Hallmarking Centre, Guwahati. The Test Reports certified the gold bars having purity of 99.51%. 2.1. In his statement dated 22.10.2018, the appellant stated that the said gold bars were given to him by two boys at Amber Hotel, Guwahati, as per the direction of Sethji, whose phone number is 7044958007. He doesn't know the real name and address of Sethji. He would be instructed by Sethji over phone as to whom and where he has to deliver the gold bars. He was arrested and remanded to judicial custody. Later follow up enquiries were conducted at Patna and Kolkata. 2.2. On completion of the investigation, a SCN was issued, inter alia, proposing penalty on the appellant for his role in the commission of the alleged offence. After due process, the said notice was adjudicated and the gold seized was confiscated vide the impugned Order-in-Original dated 06.05.2020. In the said OIO passed. a penalty of Rs. 52,55,000/- was imposed upon the Appellant. Aggrieved against the imposition of penalty, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal and unlawful manner, and the Revenue department failed to establish the fact that the said Appellant is in any way instrumental in the illegal importation of gold. In support of his contention, the appellant placed his reliance is placed on the judgment passed by the Hon'ble Bombay High Court in the case of UOI -vs- Jasmine Jayantilal Thadeshwar (2020) (372) ELT 817(Bom). 3.4. The appellant submits that there were no evidence to prove that the gold so seized were of foreign origin. Thus, it is his submission that the said gold has been seized without having any 'reasonable belief' that the said gold were of foreign origin. The appellant relied on the decision in the case of Rara Brothers V. M.L. Dey [2000(126) E.L.T.425, wherein it has been held that when there is no reasonable belief that that the goods are liable to confiscation, seizure cannot be effected. 3.5. The appellant submits that there is no foreign marking in the gold and the same is indigenously procured. Also, the purity percentage of the gold seized is not 99.9%. The gold bars were purified version of the of gold which was locally procured over the course of time. Thus, the appellant submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate his role in the alleged offence, as indicated in paragraphs 28 to 30 of the impugned order, is reproduced below: - 28. Shri Kiran Vishwanath Patil in his reply to the SCN has also claimed that he was carrying a Transfer Voucher No.0-201 dated 20.10.2018 issued by M/s Kalpadruma Gems & Jewels India Ltd., Ahmednagar, Maharashtra in respect of the 5 gold bars which was not taken into record by GRP. This is examined as under: (i) The Seizure List dated 22.10. 2018 of the GRP, which was prepared in the presence of two witnesses, does not mention the above-said voucher. (ii) Shri Kiran Viswanath Patil did not mention about this said Transfer Voucher while subscribing his voluntary and questionnaire statement on 22.10.2018. (iii) Shri Kiran Viswanath Patil did not mention about this said Transfer Voucher when he was produced before the Judicial Magistrate on 23.10.2018 (iv) Shri Kiran Vishwanath Patil did not mention about this said Transfer Voucher when he filed his bail application No. 2575/2018 before the Hon'ble Gauhati High Court on 10.12.2018. (v) In his Affidavit cum Declaration dated 26.06.2019, wherein he retracted his statement, Shri Kiran V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Kolkata on 14.10.2018, on 20.10.2018 at about 4.00 pm he reached Guwahati by flight and in Guwahati he stayed in Room No. 107 of Hotel Amber, Fancy Bazar, Guwahati. If, as claimed by him, he brought the gold bars from Ahmednagar, Maharashtra with the Transfer Voucher dated 20.10.2018, how was this possible because he had already left Ahmednagar on 12.10.2018 and he was already in Guwahati on 20.10.2018? The fact was that, the said Transfer Voucher was not with Shri Kiran Vishwanath when he left Ahmednagar, Maharashtra for Guwahati, the said Transfer Voucher was not with him when he was intercepted with the gold bars. The said Transfer Voucher was only an afterthought with connivance with the said M/s Kalpadruma Gems & Jewels India Ltd., Ahmednagar, Maharashtra. (ix) As brought out above, the only conclusion that can be drawn regarding the said Transfer Voucher dated 20.10.2018 was an afterthought by Shri Kiran Vishwanath Patil. This is nothing but a manipulation and fabrication of documents by Shri Kiran Vishwanath Patil. 29. M/s Kalpadruma Gems & Jewels India Ltd., Ahmednagar, Maharashtra vide their letter dated 22.06.2019 had claimed ownership of the gold bars under seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t before the Customs officers. It is undisputed that Shri Kiran Vishwanath Patil was carrying the five gold bars under seizure without any licit document. It is a fact that Guwahati is the gateway to North East and well connected to the rest of India through rail, air and road. Every item imported through the North East international borders, whether legally imported or smuggled, has to pass through Guwahati if it is transported/moved by rail or road. Hence, the contention of Shri Kiran Vishwanath Patil that seizure was effected on the mainland and not near the international border is not tenable. Shri Kiran Vishwanath Patil also contended that there is no foreign marking on the gold bars and therefore it cannot be said the gold bars under seizures were smuggled into India from foreign country. This is an absurd argument. Does he mean that goods without foreign marking are not smuggled. Shri Kiran Vishwanath Patil also contended that no evidence has been brought out in the SCN as to from which country the gold bars had been brought into India. In the present case even though there is no foreign marking on the gold bars, however, from the nature of interception of Shri Kiran Vishwan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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