JITENDRA PAWAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE above captioned 3 appeals have been directed against the common order -in -appeal dated 7 -10 -2002 vide which the Commissioner of Customs (Appeals) had affirmed the order -in -original dated 18 -4 -2002 of the Additional Commissioner regarding confiscation of the gold biscuits and imposition of penalty, on the appellants.

(2.) ON 27 -5 -2000, Police officers of Kotwali Police Station, Bilaspur, made seizure of the gold from the premises of M/s. Jai Saraswati Refinery Works and from the possession of its proprietor Shri Jitendra Pawar (appellant No. 1). The gold recovered was, 1 gold biscuit bearing marking UBS (10 tolas), 2 gold biscuits bearing marking 'COMMERZ BANK (10 tolas), 3 gold biscuits bearing marking 'CREDIT SUISEE' (10 tolas), 2 gold biscuits with marking UBS (10 tolas), 2 gold rod/wire weighing 164.750 gms and 86.150 gms. 1 cut piece of gold weighing 26.420 gms. 1 gold lump bearing marking JSR and Lotus flower weighing 33 grms and 5 pieces of gold lump weighing 23.850 grms, as detailed in the seizure memo which was also prepared by the Police. Later on, the Police authorities handed over all these gold to the Superintendent of Customs on 31 -5 -2000 who took into the possession under a proper panchnama on the reasonable belief that the same was smuggled gold. During the enquiry, the other two appellants were also interrogated and their statements were recorded. On completion of investigation, show cause notice was issued to all the three appellants proposing confiscation of the seized gold collectively weighing 1278.270 grms valued at Rs. 5,62,440/ - and imposition of penalty on them. Appellant No. 1 claimed the seized gold and produced the documents about the legal acquisition of the same. The other two appellants denied their concern with the seized gold. The adjudicating authority ordered the confiscation of the gold and imposed penalty of Rs. 25,000/ - each, on the appellants. The Commissioner (Appeals) had affirmed that order.

(3.) I have heard both sides. The perusal of the record shows that the initial seizure of the gold in question was made by Kotwali Police, Bilaspur on 25 -7 -2000 from the possession of appellant No. 1. It was only on 31 -5 -2000, the police intimated to the Assistant Commissioner of Central Excise, Bilaspur about the seizure of the gold with a request to take over the investigation under the Customs Act. The Superintendent of Customs thereafter got verified the purity of the seized gold from one Shisupal Soni, a dealer in gold and silver. Therefore, the presumption regarding the smuggled nature of the seized gold under Section 123 of the Customs Act was not invokable, in view of the ratio of law laid down by the Apex Court in Gian Chand v. State of Punjab - 1983 (13) E.L.T. 1365 as well as in State of Maharashtra v. Prithiviraj Pokhrai Jain - 2000 (126) E.L.T. 180 (Bom.) wherein it has been observed that in a case of seizure of gold by the police, no presumption under Section 123 of the Customs Act regarding its smuggled nature can be drawn.