Hearsay admission under S.108 requires corroboration to prove smuggled gold; absent foreign markings or evidence, confiscation unsustainable.

P. K. CHOUDHARY:

The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.173-CUS/APPL/LKO/2025 dated 30.05.2025 passed by the Ld. Commissioner (Appeals) Customs, CGST & Central Excise, Lucknow by which the appeal filed by the present Appellant has been rejected and the Order-in-Original No.146/ADC/2023-24 dated 15.02.2024 passed by the Additional Commissioner, Customs (P) Commissionerate, Lucknow has been upheld. By the said Order-in-Original No.146/ADC/2023-24 dated 15.02.2024, the learned Additional Commissioner ordered for absolute confiscation of 04 bars & 01 small piece of gold weighing 699.000 grams valued cumulatively at Rs.39,86,580/- under Section 111(b) & (k) and has imposed penalty of Rs.5,00,000/- on the present Appellant under Section 112 (b) of the Customs Act, 1962.

2. Brief facts of the case are such that on specific intelligence that the present Appellant was carrying foreign origin gold smuggled into India and travelling in Jodhpur Express train from Howrah to Jaipur, a team of DRI officers apprehended the Appellant, whereupon the Appellant admitted to carry gold with him. The Appellant was then deboarded from the train and was subjected to search, during which 04 bars & 01 small piece of yellow colored metal was found in his possession. On making further investigation, the Appellant informed that on the instructions of one Mr. Shri Prakash, he was carrying the gold from Kolkata to Jaipur, in lieu of which he would get Rs.20,000/- along with travelling expenses. The said 04 gold bars. & 01 piece of gold was then seized under Section 110 of the Act on reasonable belief that the same are smuggled into India and therefore liable to confiscation.

3. Statement of the Appellant was then recorded on 13.01.2023 whereby he stated that he is a resident of Nagaur, Rajasthan, where he has a shop of silver & artificial jewellery, Mr. Shri Prakash is the owner of recovered gold and on his instructions, he went to Kolkata, where on 11.01.2023, he met Mr. Shri Prakash who said that the recovered gold was smuggled from Bangladesh to Howrah and he was told to deliver the same to his father Shri Laxmi Narain at Jaipur. The Appellant further stated that he was lured into this business by Mr. Shri Prakash, who has done smuggling of foreign origin gold earlier also, first time he was successful but on the second time he was caught by the DRI officers. During the follow up proceedings, enquiry was made at the residential address of the Appellant, wherein the residential address and rented shop of the Appellant was found to be correct and no criminal record of the Appellant was found.

4. In the meanwhile, sample was also drawn and sent for testing and Chief Examiner, C.R.C.L. New Delhi, in his report dated 15.02.2023, confirmed that the sample is in the form of yellow colour metallic piece and mainly composed of gold having the gold content 99.78% by weight.

5. During further investigation, CDR details of phone nos. of Appellant, Mr. Shri Prakash and Shri Laxmi Narain was obtained and it was found that all the three persons were in contact with each other from 02.01.2023 to 13.01.2023. Enquiry was also made at Jaipur, however in absence of house no./plot no., address of Shri Laxmi Narain could not be traced out. Enquiries were also made at Kolkata to find out Mr. Shri Prakash but despite issuance of two summons, t