Calcutta High Court
Commissioner Of Customs (Preventive) vs Shri Anurag Jalan on 1 July, 2025
Author: T.S. Sivagnanam
Bench: T.S Sivagnanam
OD-3-6
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION
ORIGINAL SIDE
CUSTA/21/2024
IA NO: GA/2/2024, GA/3/2024
COMMISSIONER OF CUSTOMS (PREVENTIVE), KOLKATA
VS
SHRI ANURAG JALAN
CUSTA/22/2024
IA NO: GA/2/2024
COMMISSIONER OF CUSTOMS (PREVENTIVE), KOLKATA
VS
SHRI PARAM HANS
CUSTA/23/2024
IA NO: GA/2/2024
COMMISSIONER OF CUSTOMS (PREVENTIVE), KOLKATA
VS
SHRI DHAN KISHORE AGARWAL
CUSTA/24/2024
IA NO: GA/2/2024
COMMISSIONER OF CUSTOMS (PREVENTIVE), KOLKATA
VS
SHRI SHREYAS AGARWAL
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM
-A N D-
HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
DATE : 1st July, 2025.
Mr. Kaushik Dey, Adv.
Mr. Tapan Bhanja, Adv.
...for appellant
Mr. Sudhir Kumar Mehta, Adv.
Mr. Amit Awasthi, Adv.
Mr. Anurag Bagaria, Adv.
...for respondent.
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CUSTA/21/2024
The Court : Reference may be made to the order dated 19 th April, 2024,
which is quoted hereinbelow :-
“We have heard learned Counsel on either side.
The learned advocates pray for an early date for hearing of the appeal at
the Admission stage. The learned Advocate appearing for the
respondent/assessee submits that the confiscated gold may be directed to be
returned and the assessee is ready and willing to secure the interest of revenue.
To consider such a prayer we grant liberty to the respondent to file an
appropriate application in this appeal.
As could be seen from the order of adjudication dated 23.05.2022 passed
by the Additional Commissioner of Customs (Preventive), Calcutta so far as the
silver granules which were confiscated the same has been directed to be
released to the rightful owners. Therefore, the appellate department is directed to
release the silver granules mixed with white coloured coins and 20 pcs. Of gold
guineas to the rightful owners as mentioned in paragraph 64(b) of the order
passed by the adjudicating authority to the rightful owners on an application
being made by the said owners to the respondent.
This direction is issued since the appeal filed by the department against
this direction of the adjudicating authority and as was dismissed and as against
the same the department did not prefer any appeal to the Tribunal.
Therefore, the direction issued to the adjudicating authority in paragraph
16(b) of the order stands confirmed as on date.
The above directions to be complied within a period of 10 days from the
date on which the application is filed for return by the rightful owners.
Let the matter come up under the same caption on 17 th May, 2024.”
In terms of the above order, the appellant department was directed to
release the silver granules mixed with white coloured coins and 20 pcs. of gold
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guineas to the rightful owners as mentioned in paragraph 64(b) of the order
passed by the adjudicating authority to the rightful owners on an application
being made by the said owners to the respondent.
This direction was issued as the appeal filed by the Department against
this direction of Adjudicating authority was dismissed and as against the same
the Department did not prefer any appeal to the learned Tribunal. Therefore,
we affirmed the said direction and the direction was directed to be complied
with within a timeframe. We are informed by the learned standing Counsel for
the Department that this direction has been complied with.
The other aspect is for release of the gold and currency which has been
in the custody of the Department. Since the appeal has been preferred against
the order of the learned Tribunal which requires to be considered, we are
inclined to admit the appeal on the following substantial questions of law :-
i) Whether in the facts and circumstances of the instant case the Learned
Tribunal is right and justified in allowing the appeal of the respondent
without appreciating the scope and ambit of section 111(b), 111(d), 123,
ii) Whether in the facts and circumstances of the instant case the burden of
proof under section 123 of the Customs Act, 1962 is upon the
respondent to establish with cogent evidence that the seized gold in
question are not smuggled goods ?
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iii) Whether the Learned Tribunal acted with perversity and in violation of
the principles of natural justice by not considering the outcome of the
investigation of DRI Authority and wrongly allowed the appeal of the
respondent ?
iv) Whether the statements recorded under section 108 of the Customs Act,
1962 would remain valid as evidence when the respondent could not
prove that the statement was recorded under coercion and fraud ?
v) Whether in the facts and circumstances of the instant case the Learned
Tribunal is right and justified in holding that no penalty under section
112(a), 112(b) and 114AA of the Customs Act, 1962 is imposable upon
the respondent and while making such observation whether the Learned
Tribunal acted in perversity by not considering the finding of the
adjudicating authority and the role played by the respondent in the
instant case ?
vi) Whether the decisions relied upon by the Learned Tribunal while
deciding the issues no.1 and 3 is applicable in the present facts and
circumstances in the instant case ?
vii) Whether the order dated 12.07.2023 passed by the Learned Tribunal is
perverse, bad in law and liable to be set aside ?
When the matter was mentioned on an earlier occasion, we were
informed that a miscellaneous application being Customs Miscellaneous
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Application No. 75363 of 2025 has been filed by the respondent herein before
the learned Tribunal, wherein certain directions have been sought for, for
release of gold and currency. The Court orally made an observation to the
learned senior Advocate appearing for the respondent that the application need
not be pressed for the time being since this Court is inclined to take up the
appeal on an early date. This broad understanding was not recorded as the
Court was of the earnest belief that the same will be conveyed to the learned
Advocate/authorized representative who will appear for the respondent before
the learned Tribunal. However, we are surprised to note that the authorized
representative of the respondent had made submissions on merits before the
learned Tribunal when the application was heard on 30 th June, 2025 and a
direction has been issued to the concerned Officer of the Revenue to remain
present on 2nd July, 2025 to apprise the Tribunal as to whether they have
obtained any stay order against the order passed by the Tribunal or complied
with the order passed by the Tribunal till date or not.
Considering the fact that we have admitted the appeal, the order
impugned in this appeal passed by the learned Tribunal as well as the order
passed by the learned Tribunal in Customs Miscellaneous Application No.
75363 of 2025, dated 30th June, 2025, shall remain stayed until further orders.
Let the appeal be listed for hearing on 15 th July, 2025.
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Though the stay application being GA/2/2025 is formally disposed of,
since all the necessary documents are available in the stay petition, the same
be retained with the records and be treated as an informal paper book and
filing of informal paper book is dispensed with.
The application being GA/3/2025 filed by the respondent praying for
direction upon the respondent to return the seized alloy gold, the same shall be
considered at the time of final hearing of the appeal.
This order shall govern the other three appeals being CUSTA/22/2024,
CUSTA/23/2024 and CUSTA/24/2024.
(T.S. SIVAGNANAM, CJ. )
(CHAITALI CHATTERJEE (DAS), J.)
SN.
AR[CR]