SHIVJEE PRASAD GUPTA Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THE Appellant has challenged that the impugned order passed by the ld. Commissioner (Appeals) on 13 -3 -07, was bad in law and liable to be set aside on the ground that the Customs Authorities have illegally made an allegation that gold in question was concealed in the rectum by two persons without evidence in support for such allegation, there was no basis for proceeding against the Appellant, no inquiry was caused from the ornament maker at Raxaul to establish the truth and for ignorance of evidence as well as baseless allegation of gold being imported was without any credible evidence in absence of foreign marking thereon. He appeared himself from time to time and explained his case drawing attention to the ex parte decree passed by the Honble Civil Court on 5 -8 -92 as well as to the bail order passed by the Criminal Court granting him bail and pleaded that he was the real owner of the gold, seized by the Customs Authorities without any basis and evidence.

(2.) LD . SDR appearing for Revenue on the other hand submitted that the Appellant was not at all denied justice but he was rightly dealt after remand of the matter by the Tribunal on the earlier occasion. Ld. Commissioner (Appeals) hearing the matter on 4 -10 -2006 and 22 -2 -07 passed an order on 13 and 14 -3 -07 upholding the order of adjudication. However, while passing the order, he reduced the penalty to 25,000/ -.

(3.) 1 Heard both sides and perused the case record including non -certified copy of English translated documents submitted by him. Revenues plea that 424 gms. of gold was recovered from the rectum of Shri Parsuramjee and 259 gms. of gold was recovered from the rectum of Shri Jai Prakash Verma, does not get legal sanction or cognizance by Section 103 of the Customs Act, 1962. A well designed procedure is prescribed by that Section when a proper officer has reason to believe that any person has secreted the goods liable for confiscation in his body. Detention of such person for forwarding him to the nearest Magistrate for the purpose of an order for X -ray is mandate of sub -section (3) of Section 103 of the Customs Act, 1962. Prescribed procedure of Section 103 not being followed in this case, no cognizance of recovery of gold from the rectum of two persons aforesaid can be taken under the law. Therefore, to the extent, the first Appellate Order held as to the recovery of the gold from the rectum from the aforesaid two persons has no legs to stand.