The Allahabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has directed the Commissioner to return the seized gold, ruling that it was not smuggled under Section 123 of the Customs Act, 1962.
These appeals have been filed by the Commissioner of Customs- Revenue assailing the Order-in-Appeal passed by the Commissioner (Appeals) Customs, CGST, Lucknow. Since all the three appeals are against the common Order-in-Appeal they are taken up together for hearing and disposal. These appeals pertain to seizure of gold bullion weighing 5999.820 Gm. valued at Rs.1, 83, 59,448/- under Section 110 of the Customs Act.
No document regarding sale purchase/transportation of the recovered six pieces of foreign origin gold bars was produced by Shri Shiv Raj Singh who was immediately arrested, who allegedly confessed as per the Panchnama proceedings and the custodial statement that the recovered foreign origin bars have been brought into India from Bangladesh, through off route by way of smuggling, thus, there was the sufficient alleged reasons to believe that the gold bars have been brought into India from Bangladesh in violation of the provisions of Section 7(1)(c), Section 11, Section 46 of the Customs Act, read with the Section 123 of the Act.
Departmental Representative reiterated the grounds of the appeals and submitted that M/s Sai Max Traders, Delhi sent gold to M/s Ambey Trading, Kolkata vide invoice SMT#8 dated 17.07.2018 but the same was revised on 22.07.2018 and found in the deleted tally folder of the laptop recovered. On inspection of both the invoices, it was observed that in invoice dated 17.07.2018, there was no reference of Buyer, order no. and supplier reference, invoice no. in SMT#8 and the same was rectified as Credit Note No.1 in place of invoice no. and Buyer’s reference in place of supplier ref no.. The actual date of change of invoice is not ascertainable as per the report of M/s Netplanet dated 20.11.2018.
The bench held that the circumstances as required under the Customs Act are not satisfied and consequently the whole burden or onus to establish the smuggled nature of gold is on the Revenue. The situation would certainly create reasons to believe that the impugned gold could be smuggled one, it does not constitute reasonable belief to seize the gold under Section 123 of the Act.
The two member bench of the tribunal comprising P.K.Choudhary ( Judicial member) and Sanjiv Srivastava ( Technical member ) does not find any reasons to interfere with the impugned Order-in-Appeal passed by the learned Commissioner (Appeals) and accordingly, the same is sustained. The appeals filed by the Department are thus dismissed.
CESTAT further directed the Commissioner to return the gold seized forthwith/if the gold has been disposed, to return sale proceeds along with interest as per rules, within six weeks of the date of receipt/ service of the copy of this order.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
