CUSTOMS ACT, 1962

Section 123

Seizure of goods - Alleged smugglling of gold bars - Allegation that gold in question was of foreign origin and smuggled into the country - Gold in question was not carrying any marking of foreign origin

One K was intercepted by police at railway platform and gold bars were seized from him. On reasonable belief that the gold bars in question was of foreign origin and were smuggled in character, the same were handed over to Customs for further action. He gave statement that he was working for one P, proprietor of firm and at his instructions gold was brought from Kolkata to Ajmer. However, the statement was thereafter retracted. He stated that gold bars were smuggled from Bangladesh in a clandestine manner and to hide the identity of its foreign origin, gold bars were melted and marks of foreign origin were removed. Show Cause Notice was issued to appellants and thereafter, gold was confiscated and penalty was imposed. Held: It is well-settled law that for upholding the charge of smuggling, the goods have to be first established to be of foreign origin. It is required to be done by concrete and positive evidence. The retracted statement of deponent without any further corroboration from independent source, could not be considered to be legal proof for holding the gold to be of foreign origin. Apart from the fact that gold in question was not carrying any marking of foreign origin, it was also seen that there was virtually no evidence of smuggled nature of said gold in question, except for the retracted statement of K. Gold can be imported on payment of duty and is not prohibited item. Even if it was assumed that for a second, that gold in question was of foreign origin, same could have been imported on payment of duty. K, in his statement nowhere revealed as to how the gold in question was smuggled and by whom. In these circumstances, to conclude against appellants was neither justified nor warranted.

REFERRED : Commr. of Cus., Excise & Service Tax v. Sri Nand Kishore Somani & Ors. 2016 (337) ELT 10 (Cal) : 2016 Taxpub(EX) 1074 (Cal) State of Maharashtra v. Prithviraj Pokhraj Jain 2000 (126) ELT 180 (Bom) : 2000 TaxPub(EX) 3352 (Bom) Madhukar Sonaba Bhagat v. Commr. of Cus. 2019 (368) ELT 990 (Tri-Kolkata) M/s. Ram Naresh Chaurasiya v. Commr. of Cus. 2019 (365) ELT 940 (Tri-Kolkata) : 2019 TaxPub(EX) 152 (Kol) Shri Nitya Gopal Biswas v. Commr. of Cus. 2016 (344) ELT 209 (Tri-Kolkata) Sri Nand Kishore Sumani v. Commr. of Cus., CE & ST 2016 (333) ELT 448 (Tri-Kolkata) : 2016 TaxPub(EX) 509 (Kol).

FAVOUR : In assessee's favour.

A.Y. :

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