IMPORTANT POINT
The court's decision was influenced by the monetary limit for the appeal, as set by the Notification issued by the CBDT.

JUDGMENT :

1. This appeal filed by the revenue under Section 130(1) of the Customs Act, 1962 (the Act) is directed against the order passed by the Customs, Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata dated 31st December, 2021.

2. The revenue has raised the following substantial questions of law for consideration:

(i) Whether the Learned Tribunal erred in law in not holding that the statements recorded by the DRI officials while examining him on 10.06.2019 and 11.06.2019, wherein Ashok Kumar Jalan had clearly stated about the smuggling business of gold?

(ii) Whether the Learned Tribunal erred in law in not holding that the statements of the Noticee No. 1 i.e. Rajendra Kumar Damani was voluntary, while giving credence to the Noticees submission that they were retracted. The statements made by Noticee No. 1 on 07.08.2018, 08.08.2018, and 25.07.2019 were all in his own handwriting and in his vernacular, which indicates that the statements were all voluntary?

(iii) Whether the Learned Tribunal erred in law in not holding that the third statement, which is also in Rajendra Kumar Damani’s own handwriting and in his vernacular, is after the gap of almost a year, in which Rajendra Kumar Damani has reiterated his original statements. The attempted retraction was almost a year after the initial statement and the noticee had made no mention of any threat or coercion in the initial bail hearing, and hence has to be construed as an after thought?

(iv) Whether the Learned Tribunal was correct in holding Noticees claim that the gold was melted from old jewellery, since this claim was never made at any stage of the investigation, nor any shred of documentary evidence was produced?

(v) Whether the Learned Tribunal erred in law in holding the claim of the Noticee at face value in the face of overwhelming evidence against the same and not considering Section 123 of the Customs Act, 1956 which places the burden of proof on the Noticees?

(vi) Whether the Learned Tribunal erred in law in dismissing the Department’s appeal, and not considering that it was duty bound by the principles and propriety of law and justice to consider the Department’s submissions, discuss them and then arrive at a logical conclusion?

(vii) Whether the Learned Tribunal erred in law in placing reliance on Ram Nath Sah vs. Commissioner of Customs, Patna, 2007 (219) ELT 546 (Tri-Kolkata) which does not stand as the order of the Tribunal has been set aside by Order dated 18.05.2010 of Hon’ble High Court at Patna?

(viii) Whether the Learned Tribunal has wrongly placed reliance on Jaynath Shaw vs. Commissioner of Customs, Patna, 2007 (218) ELT 710 (Tri-Kolkata) affirmed by Hon’ble Patna High Court on the ground that procedure laid down in section 103(3) & (4) has not been followed by the Department in case of rectum carrier of Gold, which has no relevance in the present case?

(ix) Whether the Learned Tribunal has wrongly placed reliance on Nand Kishore Sumani Vs. Commissioner of Customs, Central Excise & Service Tax, Siliguri wherein absolute confiscation by the department has been set aside observing that the person had discharged the onus as the person who sold the goods to Nand Kishore Sumani has also confirmed supplies and in the instant case the Noticee No. 1, time and again failed to present any such documents in support of his claim before the investigating agency in the course of investigation?

(x) Whether the Learned Tribunal failed to appreciate the observation of the Hon’ble Supreme Court passed in the Criminal Appeal No. 74 of 1978, State of Gujarat vs. Shri Mohanlal Jitamalj Porwal and Another, 1987 (29) ELT 483 (SC) is very much relevant, wherein it has observed that Section 123 of the Act does not admit of any other construction. Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over-indulgent eye which sees no evil anywhere within the range