ASHOK KUMAR MEHRA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal against the Order -in -Original No. 67/A&R/VS/97, dated 26 -9 -1997 passed by the Commissioner of Customs, wherein the 17 gold biscuits bearing foreign markings and 50 gold coins also bearing foreign marking have been absolutely confiscated under Section 111(d) of the Customs Act, 1962 and also under Section 71 of the Gold Control Act, 1968. Further, the order released 5 gold coins of Indian marking but confiscated rest of 13 gold coins under Section 71 of the Gold Control Act. The learned Commissioner has refrained from imposing any penalty under the Act.

(2.) LEARNED Advocate submits that there, was time gap of about 6 months between the initial seizure of gold by the Enforcement Directorate and the taking over of the same by the Customs Officers. He also submits that apart from the delay in recording the statement, the show cause notice was issued only on 12 -7 -1990 i.e. almost a year after the seizure by the officers of the Enforcement Directorate. He submits that seizure by the Enforcement Directorate on 30 -7 -1989 would be relevant date of the seizure for the purpose of issue of the notice under Section 124 of the Customs Act as well as Gold Control Act which when read with Section 110 of the Customs Act, and Sections 71 and 79 of the Gold Control Act require that such a notice should be issued within 6 months or in the alternative seized goods should be returned to the perspn from whose possession the same were seized. The learned Advocate claims that the appellants are claimant to the goods and since it was seized from the almirah situated in the house belonging to the claimant, therefore, the goods are returnable to them. He further submits that since initial seizure was not by the Customs Officers and under the Customs Act, 1962, therefore, according to the well settled case law the provisions of Section 123 of the Customs Act cannot be invoked in this case, and hence, the burden of proof regarding smuggled origin etc. lay on the Department and not on them. Learned Advocate cited case law as reported in Gian Chand and Ors v. C.C.E., 1983 E.L.T. 1365 (S.C.), and also the decision in the case of Padi Gali Srirammula reported in 1995 (77) E.L.T. 348 (Tribunal). He also cited the case of Prem Nath Khanna as in 1997 (20) E.L.T. 9 (All.), wherein it has been held that seized gold was to be released to the person from whose custody it was seized. Learned Advocate further submitted that Principle of Natural Justice have been violated by the impugned order as the documents repeatedly sought for were not supplied despite the Tribunal's direction contained in the interim order and the impugned order was passed instead. The learned Advocate also submits the said order does not discuss as to how Section 123 (ibid) is applicable in this case. Similarly, the order is silent on the question of issue of notice within 6 months.

(3.) LEARNED DR submits that nowhere in the original proceedings the appellants have claimed the goods and hence, it is rightly confiscated absolutely. Regarding applicability of Section 123 (ibid), he submits that since the said section is invoked in the show cause notice which was issued within 6 months from the date of taking over of the gold by the Customs, therefore, the onus of proving the licit possession of the goods is on the owner. He cites the case of Harbans Lal, reported in 1993 (67) E.L.T. 20 (S.C), and also that of Kewal Krishan, reported in 1993 (67) E.L.T. 17 (S.C.) in this respect. Learned DR also distinguished applicability of the case law of Gian Chand (supra) on the ground that this is not a case where the gold was initially seized by police officers but by officers of Customs, FERA (Enforcement Directorate) who also operate under the Department of Revenue. On this point learned Advocate rises to rebut on the ground that: