[ORDER PER: ANGAD PRASAD]

This appeal is directed against Order-in-Original No.VJD-CUSTM-PRV COM-023-15-16 dated 30.09.2015 passed by the Commissioner of Customs, Vijayawada Customs, whereby, the Adjudicating Authority has ordered absolute confiscation of gold valued at Rs. 28,20,000/- under Section 111 of the Customs Act, 1962, confiscation of Indian Currency amounting to Rs. 33,56,000/- under Section 121 of the Customs Act, and imposition of penalty of 3,10,000/- under Section 112 and 117 of the Customs Act.

2. The fact, in brief, is that the appellant is engaged in the business of trading in gold and silver ornaments. On 05.02.2015 the officers of Customs conducted a search at the premises of the appellant and seized 10 gold biscuits of 100 grams each bearing foreign marking along with Indian currency of Rs. 33,56,000/-.

3. The seizure was made on the allegation that the gold biscuits were smuggled into India and that the cash represented sale proceeds of such smuggled gold. A statement of the appellant was recorded under Section 108 of the Customs Act, wherein, certain admissions were allegedly made. However, the appellant subsequently retracted the said statement. Based on the above, a Show Cause Notice was issued and the Adjudicating Authority passed the impugned order confirming confiscation and penalty.

4. Learned Counsel for the appellant submitted that the seizure itself is illegal, that there is no evidence to establish that the gold is of smuggled origin, that the burden under Section 123 has been wrongly invoked, and that absolute confiscation and penalty are not sustainable in law.

5. Learned Counsel for the appellant submitted that the Show Cause Notice was issued and confiscation was made vide impugned order under Section 111 of the Act without referring to which clause of the said section of applies to him is not sustainable. Learned Counsel for the appellant has placed reliance on the following case laws:

(a) Commissioner of Central Excise, Daman Vs Al Amin Exports [2007 (211) E.L.T. 305 (Tri-Ahmd)] and maintained by Bambay High Court as reported in Commissioner Vs Al-Amin Exports [2008 (232) E.L.T. A197 (Bom.)]

(b) Amrit Food Vs CCE, UP [2005 (190) E.L.T. 433 (S.C.)]

(c) Syniverse Mobile Solutions Pvt Ltd., Vs Commissioner of Customs, Central Excise and Service Tax, Hyd IV, [2024 (21) Centax 246 (Tri-Hyd)]

(d) Palecha Trade Services Pvt Ltd., Vs uOI [2018 (14) G.S.T.L. 351 (Raj.)]

(e) Mohd. Farhan A. Shaikh Vs ACIT [(2021) 434 ITR 1 (Bom.) (LB)]

(f) B. Laxmichand Vs GOI [1983 (12) E.L.T. 322 (Mad.)]

(g) CCE, Goa Vs Swapnil Asnodkar [2018 (10) G.S.T.L. 479 (Tri.-Mumbai)]

(h) Metro Enterprises Vs CCE, Thane [2014 (311) E.L.T. 785 (Tri. – Mumbai)]

(i) Sarada Synthetics Ltd., Vs CCE, Raigad [2014 (314) E.L.T. 411 (Tri.-Mumbai)]

6. It is further submitted that this specific submission was made by the appellant in his reply to the Show Cause Notice. Learned Adjudicating Authority has not given any finding in this regard. Learned Counsel for the appellant submitted that prior to seizure of goods the officer of Customs has legally bound to record reasons separately and then seize the goods. Except drawing panchanama that he has reason to believe that the gold was liable for confiscation, such reasons were not recorded separately prior to such seizure, such seizure was made without recording reasons to believe is against CBIC Instruction No. 1/2017-Cus dated 08.02.2017 and also against decision of Hon’ble Delhi High Court in the case of Worldwide Trades Pvt Ltd., Vs Commissioner of Customs [2016 (340) E.L.T. 174 (Del.)]

7. It is further submitted that the gold was purchased from local market and there is no evidence that the appellant had travelled out of India. The confiscation of gold even notified, all mere suspicion without proof of smuggling is wrong, in this regard Learned Counsel for the appellant has relied on the following decisions:

(a) Ratan Kumar Saha Vs CC, Patna [2021 (375) E.L.T. 435 (Tri.-Kolkata)]

(b