Birendra Nath Ghosh Vs Commissioner of Customs (Preventive) (CESTAT Kolkata)
The Customs, Excise and Service Tax Appellate Tribunal, Kolkata Bench, decided a batch of three connected appeals arising from common issues relating to seizure of gold and cash and imposition of penalties under the Customs Act, 1962. The appeals challenged orders of the Commissioner of Customs (Appeals), Kolkata, which had upheld adjudication orders imposing penalties under Section 112(b) and confiscating Indian currency alleged to be proceeds of smuggled gold.
The case originated from an interception on 01.11.2017 in Kolkata, where two kilograms of gold were allegedly recovered from one appellant, along with ₹2,00,000 in cash, suspected to be sale proceeds of smuggled gold. Separate proceedings were also initiated against two other appellants based solely on statements of a third party, alleging their involvement. The adjudicating authority imposed penalties and ordered confiscation of cash, which were affirmed in appeal, leading to the present proceedings.
The Tribunal examined whether the seized gold could be treated as smuggled. It noted that the seizure occurred in a city area and not at any port of entry, that the gold had no foreign markings, and that its purity was below 99.5%. No evidence was produced regarding the foreign origin of the gold, such as details of import, source, or violation of import conditions. The Tribunal held that mere absence of purchase documents could not establish that the gold was smuggled. It further found that the seizure was not supported by a legally sustainable “reasonable belief” under Section 110 of the Customs Act.
