Commissioner Of Customs Preventive … vs Shri Anil Kumar Soni on 31 March, 2026

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    Calcutta High Court

    Commissioner Of Customs Preventive … vs Shri Anil Kumar Soni on 31 March, 2026

    Author: Rajarshi Bharadwaj

    Bench: Rajarshi Bharadwaj

                     IN THE HIGH COURT AT CALCUTTA
                    SPECIAL JURISDICTION [CUSTOMS]
                             ORIGINAL SIDE
    
    
                             CUSTA 30 OF 2025
                            IA NO: GA 2 OF 2025
    
    
            COMMISSIONER OF CUSTOMS PREVENTIVE KOLKATA
                              VS
                       SHRI ANIL KUMAR SONI
    
    
    
    
                              CUSTA 31 OF 2025
                             IA NO: GA 2 OF 2025
    
    
            COMMISSIONER OF CUSTOMS PREVENTIVE KOLKATA
                               VS
                       SHRI ANIL KUMAR GAUR
    
    
    BEFORE:
    THE HON'BLE JUSTICE RAJARSHI BHARADWAJ
    AND
    THE HON'BLE JUSTICE UDAY KUMAR
    
    
    For the Appellant      : Mr.Bhaskar Prasad Banerjee, Ld. Adv.
                             Mr. Tapan Bhanja, Ld. Adv.
    
    
    For the Respondent     : Mr. Arijit Chakraborti, Ld. Adv.

    Mr. N.K. Chowdhury, Ld. Adv.

    Ms. Nilotpal Chowdhury, Ld. Adv.

    SPONSORED

    Mr. Prabir Bera, Ld. Adv.

    Mr. Deepak Sharma, Ld. Adv.

    
    Hearing concluded on   : 13.02.2026
    
    
    Judgment on            : 31.03.2026
                                         2
                                               CUSTA 30 OF 2025 & CUSTA 31 OF 2025
    
    
    
    Uday Kumar, J:-
    
    
    
    1. INTRODUCTION
    
    
    1.1   These   two   appeals,   preferred     by the     Commissioner       of
    
    

    Customs (Preventive), Kolkata, under Section 130 of the

    Customs Act, 1962 (hereinafter “the Act”), challenge a

    common Final Order of the CESTAT, Eastern Zonal Bench,

    dated November 22, 2024. The litigation originates from a

    singular investigative operation resulting in the interception of

    1,999.90 grams of gold bullion and its subsequent absolute

    confiscation by the Adjudicating Authority.

    1.2 CUSTA 30 of 2025 concerns Shri Anil Kumar Soni (Respondent

    No. 1), the proprietor of M/s A.R.P. Ornaments, who asserts

    lawful ownership of the seized metal. CUSTA 31 of 2025

    pertains to Shri Anil Kumar Gaur (Respondent No. 2), the

    carrier from whose physical possession the bullion was

    recovered. Since both appeals arise from an identical

    evidentiary bedrock and involve synchronous questions of law

    regarding the interpretation of Sections 108 and 123, they are

    hereby disposed of by this Common Judgment.
    3

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    2. ADMISSION AND SUBSTANTIAL QUESTIONS OF LAW

    2.1. Upon a preliminary perusal of the records and having heard

    the learned counsel for the Appellant, this Bench admits the

    appeals on the following substantial questions of law:

    a. Whether the Learned Tribunal was correct in holding

    that the Department failed to establish “reasonable

    belief” for seizure under Section 123 in a town

    seizure?

    b. Whether a confessional statement under Section

    108, retracted after a period of two years, loses its

    evidentiary value?

    c. Whether the production of GST invoices without a

    documentary nexus to the melting process is

    sufficient to discharge the reverse burden of proof?

    3. FACTUAL MATRIX

    3.1 On May 25, 2018, acting on specific and credible intelligence,

    Customs officers intercepted Shri Anil Kumar Gaur

    (Respondent No. 2), at Howrah Railway Station. A search of

    his person led to the recovery of two gold bars, weighing

    1,999.90 grams, who was transporting the same

    surreptitiously by hiding it within a specially stitched cotton

    waist belt, worn beneath his garments. The contention of
    4
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    Revenue that this unconventional clandestine way to carry the

    gold constitutes the primary “fact in issue”, was erroneously

    brushed aside by the Learned Tribunal merely on the ground

    of technicality.

    3.2 Following the interception and seizure, a statement was

    recorded under Section 108 of the Act on May 26, 2018. In

    this initial deposition, Shri Gaur admitted that he was an

    employee of M/s A.R.P. Ornaments, Varanasi, and

    categorically stated that the gold was of foreign origin, having

    been received from an unidentified individual in the Sonapatty

    area of Kolkata for transit to Varanasi. Notably, this stance

    was not a momentary admission; it was reaffirmed by him in

    a subsequent statement recorded nearly a year later, on April

    5, 2019, wherein he once again confirmed the illicit nature of

    the transit.

    3.3 The narrative took a definitive turn when Shri Anil Kumar Soni

    (Respondent No. 1), the proprietor of M/s A.R.P. Ornaments,

    appeared before the authorities to claim ownership of the

    seized metal. His defence was anchored on the assertion that

    the gold was of “indigenous origin,” purportedly resulting from

    the melting of approximately 4.7 kg of scrap ornaments

    accumulated through his business over time and personal

    sources.

    5

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    3.4 He asserted that these ornaments were converted into two

    bars of 99% purity and sent to Kolkata through Respondent

    No. 2 for an exchange that allegedly failed due to

    unfavourable market rates. To fortify this claim, the

    Respondents produced a “paper trail” comprising GST returns

    for “old ornaments” and corresponding purchase invoices.

    3.5 The Revenue sought to dismantle this defence by relying on

    scientific data that presents a formidable challenge to the

    Respondents’ version of events. A report from the Central

    Revenues Control Laboratory (CRCL) indicated that the gold

    possessed a fineness of 99.5% to 99.6%. The Adjudicating

    Authority identified a glaring “Identity Mismatch” in the

    Respondents’ provenance; while the local melting of scrap

    jewellery (commonly referred to as Kachcha gold) rarely

    transcends a purity threshold of 91% to 92%, the seized bars

    exhibited the 24-carat industrial standard typical of

    international bullion. Achieving 99.6% requires industrial

    electrolytic refining.

    3.6 Crucially, despite claiming a transformation of scrap into

    bullion, the Respondents signally failed to produce a single

    “melting memo,” “refinery slip,” or “conversion certificate”

    from a recognized refinery to explain how crude jewellery

    reached such a high degree of scientific purity.
    6

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    3.7 The Adjudicating Authority, applying the “Prudent Man” test,

    found the clandestine concealment and the total lack of

    industrial documentation to be irreconcilable with a legitimate

    domestic transaction and accordingly ordered absolute

    confiscation of the gold along with consequential penalties,

    noting the CRCL Lab Report indicated a purity of 99.5% to

    99.6%–atypical for local melting.

    3.8 However, the tide turned at the appellate stage. This order

    was overturned by the Commissioner (Appeals) and

    subsequently by the Tribunal. They took the view that this

    was a “town seizure” far from the international border.

    3.9 This decision was subsequently overturned by the

    Commissioner (Appeals) and affirmed by the Learned

    Tribunal, primarily on the ground that the interception was a

    “town seizure” occurring far from the international border.

    The Learned Tribunal held that the absence of foreign

    markings on the gold bars precluded the Department from

    harbouring a “reasonable belief” of smuggling. The Tribunal

    further dismissed the 850-day delay in the carrier’s retraction

    of his confession as a mere “technical or venial” breach,

    thereby vacating the confiscation and exonerating the

    Respondents.

    3.10 Aggrieved by this total exoneration, the Revenue has

    approached this Bench, asserting that the Tribunal’s reliance
    7
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    on the “Town Seizure” doctrine constitutes a misdirection in

    law. The Revenue reiterates that the jurisdictional trigger of

    Section 123 does not vary based on geography; once a

    “Reasonable Belief” is formed–grounded in the surreptitious

    conduct of the carrier and the nature of the goods–the

    statutory burden shifts entirely to the claimant.

    3.11 In its pursuit of an unattainable standard of proof, the

    Tribunal has effectively sidelined the “Prudent Man” test

    established by the Hon’ble Supreme Court in Collector of

    Customs, Madras v. D. Bhoormall [1983 (13) E.L.T. 1546

    (S.C.)]. The law does not demand mathematical certainty,

    which is the foil of every smuggling investigation. It requires

    only that the cumulative weight of the evidence, the

    sophisticated concealment, the extreme purity of the goods,

    and the revealing delay in retraction, creates a degree of

    probability that any reasonable mind would accept as proof of

    smuggling. To ignore this collective gravity is to render the

    Customs Act toothless.

    3.12 The Tribunal’s order is not merely erroneous; it is perverse. It

    flagrantly ignores settled law regarding the potency of

    statements recorded under Section 108. Such a statement is

    a cornerstone of evidence, yet the Tribunal has allowed it to

    be dismantled by a retraction that bears all the hallmarks of a

    “calculated afterthought” and a legal ruse. By failing to
    8
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    scrutinize the timing and motive of this retraction, the

    Tribunal has rewarded the claimant’s subversion of the truth,

    prioritizing a procedural facade over substantive justice.

    3.13 We are now called upon to determine whether the

    Respondents’ defence, when weighed against the scientific

    data and the clandestine conduct of the carrier, is sufficient to

    discharge the heavy onus placed upon them by the

    legislature.

    4. SUBMISSIONS ON BEHALF OF THE APPELLANT (REVENUE)

    4.1 Mr. Bhaskar Prasad Banerjee, Learned Counsel appearing for

    the Revenue, opened his challenge by characterizing the

    impugned order of the Learned Tribunal as a “legal non-

    sequitur” that fails to harmonize the clandestine facts of the

    case with the specialized evidentiary standards of the

    Customs Act. He contended that the Revenue’s case is

    anchored on a “tripod of evidence”– namely

    (i) The surreptitious modus operandi of concealment;

    (ii) The voluntary judicial admissions recorded under

    Section 108 of the Act, and

    (iii) The scientific purity of the metal (99.6%) as

    established by the CRCL Report.

    9

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    All of which were brushed aside by the Tribunal as

    fundamental evidentiary error. Mr. Banerjee

    contended that the Tribunal’s failure to evaluate

    these factors cumulatively, rather than in isolation,

    constitutes a perversity of approach.

    4.2 Building on this factual foundation, Mr. Banerjee submitted

    that the gold in question squarely falls within the ambit of

    “prohibited goods” as contemplated under Section 2(33) of

    the Act. Relying on the seminal decision of the Apex Court in

    Balkrishna Chhaganlal Soni v. State of West Bengal [(1974) 3

    SCC 567] (particularly paragraphs 17 and 20), he argued that

    the “reasonable belief” harboured by the seizing officers was

    not a product of idle conjecture; clandestine transport of two

    kilograms of gold bars (the notify commodity under Section

    123), surreptitiously concealed in a specially stitched cotton

    waist belt, is the quintessential hallmark of smuggling. This

    position is further fortified by the ratio in Rahul Goyal v.

    Commissioner of Customs (Prev.), 2017 (357) E.L.T. 1007

    (Tri. – Del.) where it was held that the illicit nature of such

    notified goods triggers the immediate rigors of Section 123,

    shifting the onus of proof squarely upon the possessor.

    4.3 In the light of surreptitious conduct, Mr. Banerjee, Learned

    Counsel for the Revenue vehemently challenged the Tribunal’s

    finding that the Department failed to establish “Reasonable
    10
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    Belief” merely because the interception occurred in domestic

    territory–a “town seizure”–and the bars lacked foreign

    markings. Drawing strength from the recent judgment of this

    Court in Commissioner of Customs (Prev.) v. Rajendra Kumar

    Damani [(2024) 389 ELT 444, CUSTA 16 of 2023], Mr.

    Banerjee emphasized that “Reasonable Belief” is a subjective

    satisfaction based on a “Standard of Prudence” rather than a

    standard of mathematical certainty. This principle is mirrored

    in Sampad Narayan Mukherjee v. Union of India [2019 (366)

    ELT 280 (Cal)], which clarifies that the lack of foreign

    inscriptions does not ipso facto preclude a prudent officer

    from forming a belief of illicit origin when faced with

    clandestine modus operandi. suspicious behaviour

    4.4 Transitioning from the validity of the seizure to the weight of

    the investigation, Mr. Banerjee placed heavy reliance on the

    initial statements of Respondent No. 2 recorded under Section

    108 of the Act. Ld. Counsel reminded this Bench that under

    Section 138A, there exists a statutory presumption of a

    culpable mental state, which the Respondents failed to rebut.

    He argued that the carrier’s confession was not a solitary

    instance but was reaffirmed a year later, making the

    subsequent retraction after a staggering 850-day interval a

    “calculated afterthought.” Citing Ciabro Alemao v.

    Commissioner of Customs, Goa [2018 (362) ELT 465 (Bom)]
    11
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    and the Division Bench rulings in Commissioner of Customs,

    Airport and Adm. v. Himadri Chakraborty [2023 (386) ELT

    418 (Cal)] and Ajay Saraogi v. Union of India [2023 (386) ELT

    333 (Cal)], he argued that a stale retraction without

    contemporaneous evidence of duress cannot diminish the

    evidentiary sanctity of a statement recorded in a “deemed

    judicial proceeding.”

    4.5 Further, Mr. Banerjee contended that the Respondents’

    defence of “indigenous melting” is a scientific fallacy. Relying

    on the Kerala High Court in Commissioner of Customs, Cochin

    v. Om Prakash Khatri [2019 (366) ELT 402 (Ker)] (specifically

    paragraphs 12, 19-21), he submitted that the 99.6% purity of

    gold (International Bullion Standard), as confirmed by the

    CRCL Report, acts as a silent but formidable rebuttal to the

    claim of crude local refining. The Respondents failed to bridge

    the “Identity Mismatch”–producing a “paper trail” of GST

    returns and invoices for 22-carat scrap while possessing 24-

    carat industrial bullion, but failed to produce a single “melting

    memo” or “refinery slip” to explain the transformation into 24-

    carat bullion.

    4.6 Addressing the preliminary objection regarding maintainability

    and monetary limits, Mr. Banerjee invoked the “Threshold-

    Neutral” exceptions. While acknowledging the revised Rs. 1

    Crore limit under Instruction No. 390/Misc./30/2023-JC dated
    12
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    02.11.2023, Mr. Banerjee pointed to the parent Circular dated

    17.08.2011 and the Instruction dated 26.12.2014, which

    exempt cases involving the interpretation of statutory

    provisions like Section 123. Given that the combined value of

    the gold and penalties in the present case exceeds Rs. 2.5

    Crores, it was submitted that the appeal is fully maintainable

    and that the Tribunal’s total exoneration of the respondents

    constitutes a perversity of law that warrants this Court’s

    intervention.

    4.7 In view of the submissions made and the legal authorities

    cited, Mr. Banerjee, moved this Court with the prayer that the

    Final Order of the Learned CESTAT, Kolkata, dated November

    22, 2024, be set aside in its entirety as being hit by the vice

    of perversity, and sought the restoration of the Order-in-

    Original, thereby upholding the absolute confiscation of the

    1,999.90 grams of gold and the consequential penalties under

    Sections 112(b) and 114AA of the Act. It is also prayed to

    hold that the “Reverse Burden of Proof” under Section 123

    remains undiluted by the location of seizure and that the

    Respondents signally failed to discharge the same. Ultimately,

    Mr. Banerjee prayed for a decree that reinforces the statutory

    rigor of “Reasonable Belief” based on the clandestine conduct

    and scientific purity of the metal, and for such other orders as
    13
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    this Bench deems fit to protect the interests of the National

    Exchequer.

    5. SUBMISSIONS ON BEHALF OF THE RESPONDENTS

    5.1. Per contra, Mr. Arijit Chakraborti, Learned Counsel appearing

    for the Respondents, has raised a multi-layered defence,

    primarily contending that the Revenue’s appeal is a

    “procedural overreach” that ignores both the binding nature of

    departmental circulars and the constitutional safeguards

    protecting citizens against coerced evidence. He argued that

    the Tribunal’s order is a well-reasoned finding of fact, which

    correctly identified that the Revenue failed to cross the

    jurisdictional threshold from “mere suspicion” to “reasonable

    belief.”

    5.2. Opening with a formidable preliminary objection, Mr.

    Chakraborti submitted that this appeal is hit by the bar of

    maintainability. Relying on the recent dictum of the

    Meghalaya High Court in Commissioner of Customs

    (Preventive) v. Daleep Kumar Verma & Ors. [Cus App No.

    1/2024, dated 22.10.2024] and the Manipur High Court in

    Commissioner of Customs (Preventive) Shillong v. R.K. Swami

    Singh [2025 (35) Centax 262 (Manipur)], he contended that

    the subject matter relates to valuation and is hit by the

    monetary limits prescribed in the Revenue’s own Instruction
    14
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    No. 390/Misc./30/2023-JC dated 02.11.2023, which precludes

    appeals where the amount is below Rs. 1 Crore. He further

    fortified this stance by invoking the Constitution Bench in

    Collector of Central Excise, Vadodara v. Dhiren Chemical

    Industries [(2002) 2 SCC 127] and the Madras High Court in

    Commissioner of Central Excise, Chennai-IV v. Sundaram

    Fasteners Limited [2014 (304) ELT 7 (Mad)], asserting that

    departmental instructions are mandatory commands that the

    Revenue cannot bypass at its convenience, thereby creating

    an “estoppel by circular.”

    5.3. Inextricably linked to this procedural bar, Mr. Chakraborti

    argued that the entire proceedings are vitiated by the lack of

    a valid “Reasonable Belief” at the inception of the seizure.

    Drawing support from the Gujarat High Court in Union of India

    v. Abdulkadar Abdulgani Hasmani [1991 (55) ELT 497 (Guj)]

    and this Court’s decision in Commissioner of Customs Excise

    & Service Tax v. Nand Kishore Somani [2016 (337) ELT 10

    (Cal)], Mr. Chakraborti submitted that in an inland “town

    seizure” where gold lacks foreign markings, the Department

    cannot harbour a belief of smuggling based solely on the

    manner of transport. He emphasized that as per the ratio in

    Commissioner of Customs, Excise & Service Tax Rohtak v.

    Merino Panel Product Ltd. [(2022) 1 Centax 59 (S.C)], and

    Rara Brothers v. M.L. Dey [2000 (125) ELT 425 (Patna HC)],
    15
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    “Reasonable Belief” must be a judicial conclusion, rooted in

    tangible material rather than “suspended animation” or “mere

    suspicion,” a threshold the Revenue failed to satisfy.

    5.4. Transitioning to the evidentiary weight of the carrier’s

    statement, Mr. Chakraborti placed heavy reliance on the

    landmark ruling in Vinod Solanki v. Union of India & Anr.

    [(2008) 16 SCC 537], for the contention that a confession is

    “weak evidence,” particularly when the same was extracted

    under duress and physical threat. The legal principle

    explained in Vinod Solanki (supra), that the Court must weigh

    the evidentiary value by bearing in mind the attending

    circumstances of the retraction, as the initial statement was

    extracted under duress and physical threat. Therefore, these

    statements should be excluded as not admissible due to effect

    of Section 24 of the Indian Evidence Act, read with the

    constitutional safeguards of Article 20(3).

    5.5. He further contended that the 850-day delay in retraction,

    characterized by the Revenue as an afterthought, must be

    weighed against the attending circumstances and the lack of

    independent corroboration. Relying on the principles of

    natural justice highlighted in Ajay Saraogi (supra),

    Commissioner of Customs Airport and Adm. v. Himadri

    Chakraborty (supra), and the Bombay High Court in Union of

    India v. Imtiaz Iqbal Pothiawala [2019 (365) ELT 167 (Bom)],
    16
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    he contended that the absence of regular books of account

    cannot ipso facto lead to an inference of smuggling, and

    Revenue’s reliance on the CRCL report without allowing cross-

    examination of the experts is a fatal flaw in the adjudicatory

    process.

    5.6. Mr. Chakraborti maintained that the Respondents successfully

    discharged their burden by producing a “paper trail” of GST

    returns and purchase invoices for old ornaments. Citing the

    very recent decision in Commissioner of Customs (Preventive)

    v. Shri Prahlad Kumar Das [Cus Ref 2/2025, dated 13.10.25],

    Mr. Chakraborti asserted that once purchase invoices and GST

    returns for “old ornaments” are produced, the Department

    cannot discard them in favour of a presumed “identity

    mismatch.”

    5.7. He submitted that the purity of 99.6, in itself, would not be a

    sole ground for holding the presumption of smuggled gold

    bar. He further underscored that the minor difference in

    weight (1,999.900g vs 2000g) is an artefact of scale

    calibration rather than any criminal intent. Referring the

    above facts he argued that any minor discrepancy in weight

    or purity is merely a “technical or venial” breach as per the

    ratio held in Hindustan Steel Ltd. v. State of Orissa [1969 (2)

    SCC 627], which does not warrant the draconian measure of

    absolute confiscation.

    17

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    5.8. Mr. Chakraborti underscored that the Respondents

    successfully discharged their onus validly by producing

    documentary evidence, including GST returns and purchase

    invoices. Therefore, he prayed for dismissal of the Revenue’s

    appeal at the threshold and the affirmation of the Tribunal’s

    order, was seeking total exoneration and the release of the

    seized gold.

    6. THE CORE CONTROVERSY

    6.1. We find ourselves at the intersection of two competing legal

    narratives. On one hand, the Revenue seeks to enforce the

    strictures of the “Reverse Burden” under Section 123,

    predicated upon the carrier’s surreptitious conduct and the

    high scientific purity of the metal. Conversely, the

    Respondents seek sanctuary under the “Town Seizure”

    doctrine and the purported regularity of their commercial

    documentation.

    6.2. The threshold issue before this Bench is whether the

    Tribunal’s decision to prioritize the Respondents’ “paper trail”

    of domestic transactions over the Department’s investigative

    findings and scientific data constitutes a perversity of law. We

    must determine if the Respondents successfully bridged the

    “Identity Mismatch”–the vast scientific gulf between the “raw
    18
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    scrap” they allegedly processed and the international-

    standard “high-purity bullion” intercepted by the Revenue.

    7. DETERMINATION ON THE PRELIMINARY OBJECTION AS

    TO MAINTAINABILITY

    7.1. In adjudicating the challenge to the maintainability of these

    consolidated appeals, we must first address the Respondents’

    contention that this Court is divested of jurisdiction by both

    statutory mandate and administrative policy. The challenge is

    twofold: first, that the dispute falls within the exclusionary

    category of “valuation” under Section 130(1) of the Customs

    Act, 1962; and second, that the appeal is barred by the ₹1

    Crore monetary threshold prescribed by CBIC Instruction No.

    390/Misc./163/2010-JC (as modified on November 2, 2023).

    We find it imperative to dissect these objections through the

    prism of the specialized evidentiary architecture of the Act.

    7.2. The Respondents assert that since the Learned Tribunal

    vacated the “confiscation,” such a determination is

    inextricably linked to “assessment,” thereby reserving

    exclusive jurisdiction for the Hon’ble Supreme Court under

    Section 130E(b). We find this objection to be a fundamental

    misconstruction of the statutory scheme. The “valuation”

    contemplated under the exclusionary clause refers to the

    technical quantification of duty for assessment purposes. In
    19
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    sharp contradistinction, an order of “Absolute Confiscation”

    under Section 111 is an enforcement action predicated on the

    illicit nature of the goods–an action in rem against the

    property itself.

    7.3. This position is firmly anchored in the celebrated ratio

    decidendi of Navin Chemicals Mfg. & Trading Co. Ltd. v.

    Collector of Customs [1993 (68) E.L.T. 3 (S.C.)], which

    clarifies that determining whether goods are liable to

    confiscation is a question of statutory violation, not an

    arithmetic exercise of tax quantification.

    “The determination of a question relating to the rate of
    duty or the value of goods for the purposes of
    assessment… does not include a question of whether
    the goods are liable to confiscation or whether a penalty
    is imposable.” (Paragraph 11)

    7.4. Parallel to this statutory objection, the Respondents invoke

    the policy bar, contending that the appeal is precluded by the

    Rs. 1 Crore threshold. While departmental circulars are

    binding on the Revenue, they do not act as an absolute ouster

    of judicial review, as observed by the Constitution Bench in

    Dhiren Chemical Industries (supra). The parent Circular No.

    390/Misc./163/2010-JC dated August 17, 2011, identifies

    “threshold-neutral” scenarios where an appeal must be filed

    regardless of the amount. Specifically, cases involving the

    interpretation of a statutory provision (such as Section 123)
    20
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    or those of a recurring legal nature are exempt from

    monetary bars. The “Town Seizure” doctrine and the

    discharge of the reverse burden are recurring legal

    controversies that demand judicial finality.

    7.5. Furthermore, even if the monetary threshold were to be

    strictly applied, the Respondents’ objection is both legally

    infirm and factually moot. The value of the 1,999.90 grams of

    gold at the time of seizure was approximately Rs. 1.5 Crores,

    which, when coupled with the cumulative penalties exceeding

    Rs. 1 Crore, places the financial impact of this litigation well

    above the revised limit. Most significantly, where a Tribunal

    arrives at a finding by ignoring material evidence–specifically

    the 99.6% purity and the 850-day delay in retraction–such a

    finding is hit by the vice of perversity. Since perversity in a

    finding of fact constitutes a Substantial Question of Law, this

    Court is duty-bound to intervene.

    7.6. Accordingly, we hold that the setting aside of an absolute

    confiscation is an enforcement dispute, the interpretation of

    Section 123 is a recurring legal necessity, and the total value

    exceeds the policy threshold. The preliminary objections as to

    maintainability are, therefore, overruled.

    7.7. We shall now proceed to evaluate the merits of the “tripod of

    evidence” presented by the Revenue.

    21

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    8. THE MERITS OF THE SEIZURE AND SCIENTIFIC PURITY

    8.1. Having navigated the procedural thickets of maintainability,

    we now enter the substantive core of this controversy: the

    merits of the seizure and the scientific purity of the subject

    gold. Our inquiry is directed toward whether the Learned

    Tribunal was legally justified in reversing the order of absolute

    confiscation by compartmentalizing the evidence, rather than

    evaluating the cumulative weight of what the Revenue aptly

    describes as a “tripod of evidence.” This tripod–comprising

    the clandestine manner of transport, the voluntary admissions

    under Section 108, and the high scientific purity of the

    metal–forms the bedrock of the Department’s case.

    Conversely, the respondents seek sanctuary under the “town

    seizure” doctrine, arguing that an inland interception of

    unmarked gold creates an insurmountable evidentiary gap

    that a mere “paper trail” of commercial transactions can

    sufficiently bridge.

    8.2. As a preliminary factual observation, we note that the value of

    the 1,999.90 grams of gold (approx. Rs. 1.5 Crores) and the

    total penalties (Rs. 1.02 Crores) satisfy both the monetary

    and legal thresholds for this Court’s intervention. The sheer

    volume of the metal and its concentration into high-purity
    22
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    bars elevate this matter beyond a routine commercial dispute

    into the realm of a grave statutory violation under the Act.

    8.3. Regarding the first evidentiary pillar–the clandestine manner

    of transport–it is an admitted fact that the gold was found

    neither in a briefcase, nor a commercial parcel, nor even

    personal baggage. It was found secreted within a specially

    stitched cotton waist belt worn by Respondent No. 2 beneath

    his garments. The Learned Tribunal characterized this as a

    “technicality” of transport; however, we find this

    characterization to be legally fragile. Applying the “Prudent

    Man” test as envisaged under Section 123, the choice of a

    hidden waist belt for transporting high-value bullion is a

    potent indicator of an intent to evade detection–a

    quintessential hallmark of illicit transit that warrants the

    formation of “Reasonable Belief.”

    8.4. The second, and perhaps most scientifically damning pillar, is

    the purity of the metal. The Respondents’ defense rests on

    the claim that they melted “old ornaments” (22-carat

    jewellery) to produce these bars. However, the CRCL Lab

    Report confirms a fineness of 99.5% to 99.6%. We must

    observe that the transition from scrap jewellery to industrial-

    standard 24-carat bullion is not a product of simple

    “indigenous melting” in a local crucible. It requires an
    23
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    electrolytic refining process to remove the alloys (copper,

    silver, or zinc) inherent in jewellery.

    8.5. While the Respondents produced GST returns for “old

    ornaments,” they signally failed to produce any “Melting

    Memos” or “Refinery Certificates” from a recognized refinery

    to explain how 22-carat scrap reached a 99.6% international

    bullion standard. This “Identity Mismatch” creates a chasm in

    the defense that the Tribunal appears to have overlooked. In

    the absence of a documented industrial provenance, the high

    purity of the metal, when coupled with the surreptitious

    concealment, provides a robust foundation for the Revenue’s

    invocation of the reverse burden under Section 123.

    9. ANALYSIS ON REASONABLE BELIEF AND STATUTORY

    BURDEN (SECTION 123)

    9.1 The tectonic plates of this legal dispute rest upon the interplay

    between “Reasonable Belief” under Section 123 and the

    evidentiary sanctity of the investigations conducted therein.

    We find that the Learned Tribunal’s primary justification for

    exoneration–the domestic location of the interception–

    represents a fundamental misapplication of the statutory

    framework. Section 123 constitutes a self-contained code; it

    does not establish a geographical hierarchy for the formation

    of “Reasonable Belief.” Whether bullion is intercepted at an
    24
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    international border or within a domestic metropolis, the

    jurisdictional trigger remains the “Prudent Man Test” as

    propounded in D. Bhoormall (supra).

    9.2 In distilling the essence of “Reasonable Belief,” we are guided

    by the seminal observations of the Hon’ble Supreme Court in

    D. Bhoormall (supra), which clarify that the Revenue is not

    mandated to establish its case with mathematical certainty at

    the threshold stage. Rather, it must demonstrate a degree of

    probability such that a “prudent man” would, based on the

    available material, believe in the illicit origin of the goods.

    This subjective satisfaction, as reaffirmed by this Court in

    Rajendra Kumar Damani (supra), is generally insulated from

    judicial review unless found to be wholly arbitrary or

    capricious. The Patna High Court observed in M.L. Dey (supra)

    that reasonable belief is more than mere suspicion; it is a

    belief reached by a prudent man applying his mind judicially

    to the facts.

    9.3 We find that the Tribunal’s reliance on a “town seizure”

    doctrine creates an artificial evidentiary barrier that ignores

    the realities of modern smuggling. Under settled law, the

    validity of a seizure under Section 110 must be tested against

    the Standard of Prudence, not a Standard of Location. The

    “Reasonable Belief” mandated by statute is not a final
    25
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    conviction of guilt, but a prima facie satisfaction derived from

    the totality of the circumstances.

    9.4 In the instant case, the “belief” was not anchored in the mere

    possession of gold, but in the highly surreptitious conduct of

    Respondent No. 2. Two kilograms of bullion were not

    transported through transparent commercial channels; they

    were bound to the carrier’s person in a specially stitched

    cotton waist belt–a quintessential hallmark of clandestine

    movement. To hold that such a modus operandi does not

    constitute “material” for reasonable belief is to substitute

    judicial reality with clinical isolation.

    9.5 Furthermore, the absence of foreign markings does not ipso

    facto vitiate “Reasonable Belief.” To hold otherwise would be

    to ignore the strategic defacement frequently employed by

    smuggling syndicates to mask provenance. Smuggled gold

    does not lose its illicit character by moving inland or through

    the tactical removal of origin stamps. Applying the ratio of D.

    Bhoormall (supra), we find that the clandestine manner of

    transport and the lack of contemporaneous provenance

    constituted sufficient “material” for a prudent officer to form a

    valid belief.

    9.6 Consequently, we hold that the jurisdictional prerequisite of

    Section 123 was fully satisfied, and the burden of proof
    26
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    shifted squarely and inextricably to the Respondents–a

    burden they signally failed to discharge.

    10. THE EVIDENTIARY SANCTITY OF SECTION 108

    STATEMENTS

    10.1. Regarding the Learned Tribunal’s summary dismissal of the

    statements recorded under Section 108 of the Act, we find it

    imperative to delineate the specialized statutory landscape

    governing such evidence. Section 108 empowers a Gazetted

    Officer of Customs to summon any person to provide evidence

    or produce documents. Sub-section (3) mandates that all

    persons so summoned are “bound to state the truth,” and

    crucially, under sub-section (4), such inquiries are elevated by

    legal fiction to the status of “judicial proceedings” within the

    meaning of Sections 193 and 228 of the Indian Penal Code.

    This statutory character fundamentally distinguishes these

    depositions from ordinary confessions recorded by police

    authorities.

    10.2. Following the celebrated Constitution Bench decision in Illias

    v. Collector of Customs, Madras [AIR 1970 SC 1065], it is

    settled law that Customs Officers are not “police officers” for

    the purposes of Section 25 of the Evidence Act. Their primary

    mandate is the protection of the National Exchequer and the

    prevention of smuggling; since they lack the power to file a
    27
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    charge sheet under Section 173 of the Code of Criminal

    Procedure, a confession recorded by them is admissible as

    substantive evidence. Such statements are neither hit by the

    exclusionary rules of the Evidence Act nor do they violate the

    constitutional protection against self-incrimination enshrined

    in Article 20(3). As the Apex Court clarified in Ramesh

    Chandra Mehta v. State of West Bengal [AIR 1970 SC 940], at

    the stage of a Section 108 inquiry, the deponent is not an

    “accused” in the technical sense, rendering the shield of

    Article 20(3) unavailable.

    10.3. The core controversy here lies in the evidentiary weight

    attached to a retracted statement. For a retraction to be

    legally potent, it must be contemporaneous. We are guided by

    the ratio in K.I. Pavunny v. Asst. Collector (HQ), Central

    Excise Collectorate, Cochin [1997 (3) SCC 721], wherein the

    Supreme Court held:

    “It is the duty of the court to look into the facts and
    circumstances of each case to find whether the
    confession was voluntary… If the court is satisfied that
    the confession was voluntary and true, it can form the
    basis of conviction.”

    10.4. As held in Ciabro Alemao (supra) and reaffirmed by this Court

    in Ajay Saraogi (supra), the failure to complain of duress

    before a Magistrate at the first available opportunity is fatal to

    a plea of coercion. In the present case, Respondent No. 2
    28
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    (Shri Gaur) appeared before the authorities a full year after

    the initial seizure and voluntarily reaffirmed his statement.

    10.5. The silence of the Respondents for over two years, followed

    by a retraction–a staggering 850 days later–only upon the

    receipt of a Show Cause Notice, marks it as a “calculated

    afterthought” and a strategic ruse. The Tribunal’s decision to

    prioritize this stale denial over a twice-confirmed judicial

    statement is perverse. The law cannot allow a “deemed

    judicial proceeding” under Section 108 to be neutralized by a

    belated signature of convenience. A voluntary statement

    recorded in such proceedings cannot be displaced by a

    subsequent denial unless the attending circumstances clearly

    demonstrate coercion. In this instance, the Respondents’

    prolonged silence speaks louder than their belated

    protestations.

    11. THE SCIENTIFIC REBUTTAL: PURITY AND PROVENANCE

    11.1 The Respondents’ defense rests upon a purported “paper trail”

    that collapses under the weight of scientific reality. While they

    maintain that the seized gold was “indigenous”–refined from

    local 22-carat scrap ornaments–the CRCL Report confirms a

    fineness of 99.6%. We find a total “Identity Mismatch” here:

    the production of documentation for “Scrap” (Material X)
    29
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    cannot, in law or science, discharge the burden of proof for

    “High-Purity Bullion” (Material Y).

    11.2 In the specialized gold trade, an immutable distinction exists

    between “Kachcha gold” (locally melted jewelry) and “995

    Bullion” of international standards. Achieving 99.6% fineness

    through crude local melting, without industrial-grade

    electrolytic refining, is a scientific improbability. High-purity

    gold of this grade is the product of sophisticated chemical and

    electrolytic processes specifically designed to extract base

    metal alloys (copper, silver, or zinc) inherent in jewellery–a

    transformation far beyond the capabilities of rudimentary local

    crucibles.

    11.3 Following the ratio of the Kerala High Court in Commissioner

    of Customs v. Om Prakash Khatri [2019 (366) E.L.T. 402

    (Ker)], we hold that high purity acts as a “silent but

    formidable rebuttal” to any claim of indigenous origin. As

    observed in Paragraph 19 of the said judgment, such purity

    constitutes potent circumstantial evidence of foreign origin

    when the possessor fails to establish industrial provenance. In

    the absence of a “Melting Memo” or “Refinery Certificate,” the

    Respondents’ paper trail is effectively a “trail to nowhere.”

    11.4 Furthermore, we find the Learned Tribunal’s invocation of the

    “Venial Breach” doctrine from Hindustan Steel Ltd. v. State of

    Orissa (supra) to be wholly misplaced. The ratio in Hindustan
    30
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    Steel protects bona fide technical errors where there is no

    contumacious conduct. However, the total failure to prove the

    legal origin of two kilograms of industrial-grade bullion is a

    foundational failure of proof, not a technicality. As observed in

    Merino Panel Product Ltd. (supra), the protection of “technical

    breaches” cannot be extended to shield conduct

    fundamentally designed to circumvent the rigors of Section

    123.

    11.5 Applying the “Prudent Man” test, we hold that a legitimate

    trader would neither transport high-value bullion concealed in

    a waist belt nor lack the essential refinery documentation

    required to verify its transformation. The cumulative weight of

    the scientific purity matching international standards, the

    absence of payment particulars in the ledgers, and the lack of

    refinery records satisfy us that the Respondents signally failed

    to discharge their statutory burden. The Tribunal’s finding that

    these discrepancies were merely “technical mistakes” is

    perverse and cannot be sustained.

    12. CONCLUSION AND FINAL DETERMINATION

    12.1. In adjudicating the merits of these consolidated appeals, we

    find a fundamental subversion of the “Reverse Burden of

    Proof” at the Tribunal level. Following a threadbare analysis of

    the record, we conclude that the impugned order suffers from
    31
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    fatal legal and factual infirmities. The Learned Tribunal

    proceeded on the erroneous assumption that the Revenue

    must establish the entire “smuggling chain” with

    mathematical precision. Such an approach negates the

    legislative intent behind Section 123 of the Act, which shifts

    the onus of proof onto the claimant to rebut the presumption

    of illicit origin once “Reasonable Belief” is established.

    12.2. We hold that the Learned Tribunal’s order is hit by the vice of

    perversity. By disregarding the scientific impossibility of the

    defence and the evidentiary sanctity of the Section 108

    statements, the Tribunal effectively reversed the statutory

    burden of proof without the Respondents having discharged

    their legal obligations. The protection of the “Venial Breach”

    doctrine under Hindustan Steel Ltd. (supra) cannot be

    extended to a foundational failure of proof involving two

    kilograms of industrial-grade bullion. A legitimate commercial

    transaction of such magnitude is not transported secreted in a

    waist belt, nor does it lack the requisite industrial

    nomenclature of refinery documentation.

    12.3. Having traversed the factual matrix and the statutory

    landscape, this Court is of the firm opinion that the impugned

    order is not merely an alternative view of facts, but a

    fundamental miscarriage of justice rooted in a misapplication

    of the law.

    32

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    12.4. We reiterate the following conclusive legal principles as the

    basis of our determination:

    (a) We hold that “Reasonable Belief” is a behavioural

    and material construct, not a geographical one.

    The “Town Seizure” doctrine cannot serve as a

    legal sanctuary for the illicit transport of high-

                     purity   bullion.        Once    the   modus     operandi--
    
                     clandestine    concealment--is           established,      the
    
    

    jurisdictional trigger of Section 123 is complete.

    (b) We reaffirm that a statement recorded in a

    “deemed judicial proceeding” carries a

    presumption of truth. A non-contemporaneous

    retraction, appearing after a staggering 850-day

    interval, must be discarded as a “calculated

    afterthought” unless corroborated by independent

    medical or judicial evidence of duress.

    (c) We hold that in matters of bullion, Scientific Purity

    is the ultimate provenance. A “paper trail” of GST

    returns for scrap ornaments cannot bridge the

    identity mismatch between jewellery alloys and

    99.6% pure international-standard bullion. The

    transition from scrap to 24-carat bullion requires

    industrial electrolytic refinement, not rudimentary

    local melting. The failure to produce “Melting
    33
    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    Memos” or “Refinery Slips” is fatal to the

    discharge of the reverse burden of proof.

    13. CONSEQUENTIAL ORDERS AND DIRECTION

    13.1 Accordingly, the Substantial Questions of Law are answered in

    the affirmative, in favour of the Revenue. The impugned order

    of the Learned Tribunal dated November 22, 2024, is found to

    be legally unsustainable and perverse. We, therefore, pass

    the following orders and directions:

    i. CUSTA 30 of 2025 and CUSTA 31 of 2025 are hereby

    allowed.

    ii. The common Final Order Nos. 77590-77591 of 2024

    dated November 22, 2024 passed by the Learned

    CESTAT, Eastern Zonal Bench, Kolkata, is hereby set

    aside for being perverse and contrary to the settled

    principles of the Customs Act.

    iii. The Order-in-Original No. 59/ADC(P)/CUS/ WB/2020-

    21 dated November 12, 2020, passed by the

    Adjudicating Authority, directing the absolute

    confiscation of the 1,999.90 grams of gold and

    imposing consequential penalties on Respondent No.

    1 and Respondent No. 2, is restored in its entirety.
    34

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    iv. The absolute confiscation of the 1,999.900 grams of

    gold is upheld.

    v. The Revenue is directed to proceed with the final

    disposal of the said confiscated gold in accordance

    with the prescribed statutory procedures and the

    Disposal Manual.

    vi. A penalty of Rs. 6,00,000/- (Rupees Six Lakhs)

    under Section 112(b) and a further penalty of Rs.

    90,00,000/- (Rupees Ninety Lakhs) under Section

    114AA (for the production of

    manufactured/fabricated documentation) against Shri

    Anil Kumar Soni (Owner/ respondent no. 1) are

    confirmed.

    vii. A penalty of Rs. 6,00,000/- (Rupees Six Lakhs)

    under Section 112(b) against Shri Anil Kumar Gaur

    (Carrier/ respondent no. 2) is confirmed.

    viii. The Respondents are directed to deposit the

    aforesaid penalty amounts within four weeks from

    the date of this order.

    ix. In the event of default, the Revenue is granted the

    liberty to initiate recovery proceedings under Section

    142 of the Act, including the attachment of personal

    and business assets.

    35

    CUSTA 30 OF 2025 & CUSTA 31 OF 2025

    x. The appellant-Department is directed to immediately

    invoke, encash, and appropriate any Bank

    Guarantees, Cash Deposits, or securities furnished by

    the respondents during the pendency of the

    litigation.

    xi. Given our specific finding that the accounting trail

    produced was “manufactured,” we direct the Registry

    to forward a copy of this judgment to the

    Jurisdictional Commissioner of GST and the Income

    Tax Authorities for an inquiry into the potential

    “Kachcha” accounts of M/s A.R.P. Ornaments.

    14. All connected pending applications, including GA 2 of 2025 in

    both appeals, stand disposed of accordingly.

    15. No order as to costs.

    16. Urgent certified copy of this judgment, if applied for, be

    issued to the parties on usual terms.

    17. Order pronounced in open Court.

    
                    I AGREE
    
    
             (RAJARSHI BHARADWAJ, J.)                         (UDAY KUMAR, J.)
    Later:
    

    Learned Counsel appearing for the respondent prays for stay
    of operation of this judgment and order for a period of four weeks.
    Such prayer is considered and rejected.

             (RAJARSHI BHARADWAJ, J.)                         (UDAY KUMAR, J.)
     



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