IN THE HIGH COURT OF JUDICATURE AT PATNA MISC. APPEAL No.132 of 2008 ============================================ COMMISSIONER OF CUSTOMS PATNA, CENTRAL REVENUE BUILDING - Appellant(s) Versus KISHORI PRASAD SARAF- Respondent(s) ============================================ with MISC. APPEAL No.133 of 2008 ============================================ COMMISSIONER OF CUSTOMS PATNA, CENTRAL REVENUE BUILDING - Appellant(s) Versus SURAJ KUMAR - Respondent(s) ============================================ Appearance: (In M.A. No.132 of 2008) For the Appellant: Mr. RAKESH KUMAR SINGH For the Respondent: Mr. S.P.TWEWARI (In M.A. No.133 of 2008) For the Appellant: Mr. RAKESH KUMAR SINGH For the Respondent: Mr. S.P.TWEWARI ============================================ CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 10. 19.01.2011 These two Appeals under Section 130 of the Customs Act, 1962 are preferred by the Commissioner of Customs, Patna against the order dated 31st August 2007 made by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as ‘the Tribunal’), in Customs Appeal Nos. 13 of 2006 and 14 of 2006. 2 The matter at dispute is the seizure and consequent order of confiscation of 490 grams of pure gold recovered from the body of one Sri Suraj Kumar, the respondent in Miscellaneous Appeal No. 133 of 2008. The facts giving rise to the present Appeals briefly stated are as under; On 19th April 2008, the aforementioned Sri Suraj Kumar was intercepted while he was traveling on a bus from Raxaul to Patna. On interrogation of the said Sri Suraj Kumar he admitted before the customs officer that he was carrying four pieces of pure gold weighing 489.500 grams concealed in his rectum. On the admission made by Sri Suraj Kumar the gold was recovered from his body and was seized. Upon examination by the laboratory the said gold was found to be of 24 caret purity worth Rs. 2,49,645/-. The said Sri Suraj Kumar in his statement recorded under Section 107 of the Customs Act, 1962 (hereinafter referred to as ‘the Act’) disclosed that he was the employee of one Kishori Prasad, resident of village- Garawa Mangri, District- West Champaran; that the said Kishori Prasad had given him the seized gold for carrying and that the said gold was purchased from Nepal, a foreign country. After due procedure of issuing show cause notice and giving opportunity to prove the source of the gold, the Joint Commissioner of Customs, Patna under 3 his order dated 31st January 2005 recorded the finding that the seized gold was of foreign origin and that it was illegally brought within the territories of India. In view of the said finding, gold was ordered to be confiscated and a penalty of Rs. 5,000/- was imposed upon the carrier Sri Suraj Kumar and Rs. 20,000/- upon the owner Sri Kishori Prasad, the respondent in Miscellaneous Appeal No. 132 of 2008. The said order was confirmed by the Commissioner (Appeals), Customs & Central Excise, Patna on 19th December 2005 in Appeal No. 344 of 2005 preferred by the aforesaid Sri Kishori Prasad & Sri Suraj Kumar. Feeling aggrieved, both Sri Kishori Prasad and Sri Suraj Kumar preferred Appeal Nos. 13 of 2006 and 14 of 2006 before the Tribunal. The Tribunal, in view of the lower purity of the seized gold, under the impugned order dated 31st August 2007, gave the benefit of doubt to the respondents herein. The Tribunal held that the gold of much lower purity cannot be held to be of foreign origin. The fact that there was no medical report or an x-ray of the carrier was also taken into consideration. In view of the said finding the Tribunal set aside the order under appeal with consequential benefit to the appellants. Feeling aggrieved the Commissioner of Customs, Patna has preferred the present Appeals. 4 Learned advocate Mr. Rakesh Kumar Singh has appeared for the appellants. He has taken us through the relevant provisions and the confessional statement made by the said Sri Suraj Kumar under Section 107 of the Act. He has submitted that in view of the confessional statement made under Section 107 of the Act, which is admissible in evidence, no further proof of seized gold was required. He has further submitted that the carrier Sri Suraj Kumar did admit before the Custom Officer that he was carrying contraband gold concealed in his rectum. In view of the said admission and provisions contained in Section 103(8) of the Act, the carrier was not required either to be examined by a doctor or screened or x- rayed. In support of his argument, he has relied upon the judgments of the Hon’ble Supreme Court in the matters of Surjeet Singh Chhabra Vs. Union of India & Ors., [(1997)1 SCC 508]; and of K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, [(1997)3 SCC 721] and of Commissioner of Customs (Preventive) Vs. vijay Dasharath Patel, [(2007) 4 SCC 118]. He has also relied upon the judgment of this Court (Coram: S.K. Katriar and Kishore K. Mandal, JJ.) in the matter of Commissioner of Customs Vs. Sri Ram Nath Sah (M.A. No. 629/2007 decided on 18.5.2010). The Appeals are contested by learned 5 advocate Mr. S.P. Tiwary, appearing for the respondents. He has submitted that any gold which has the purity of less than 99.9 per cent cannot be a gold of foreign origin. In view of the lower purity of the seized gold the Tribunal has rightly given benefit of doubt to the respondents. He has submitted that in his statement made in reply to the show cause notice the aforesaid Kishori Prasad, the owner of the gold did disclose the name of the persons from whom he had purchased the jewellery, melted the same to recover purified gold. Nevertheless, the Custom authorities failed to examine those persons to bring truth on the record. We are unable to agree with Mr. Tiwary. The proposition that gold of lesser purity can never be of foreign origin is not substantiated before us. Submission is not supported either by statutory provision or by a ruling of a Court. It cannot be gainsaid that the said Sri Kishori Prasad was given opportunity to prove the origin of the gold which he failed to do. In absence of any proof produced by the owner Sri Kishori Prasad, in view of the confessional statement made by the carrier Sri Suraj Kumar under Section 107 of the Customs Act and in view of the laboratory report, the finding of contraband gold smuggled into the country recorded by the authorities below ought to have been confirmed by the Tribunal. We 6 find that the approach of the Tribunal was perfunctory and casual, not in consonance with the legal provisions. For the aforesaid reasons, we allow these Appeals with cost. The impugned order dated 31st August 2007 made by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata in Customs Appeal Nos. 13 of 2006 and 14 of 2006 is quashed and set aside. The order of the authorities below is restored. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)