Order date – 10 November 2022

 Facts –

• The Appellant, M/s Vihari Jewels sold ‘diamond studded jewellery’ and ‘diamonds’ worth ₹ 16, 41,45,682 to nine individuals. That were seized between 15 July 2014 and 11 December 2014 from these customers, were brought by Ms Vihari Sheth on her trips in the months preceding the interception at the airport. The seized goods were offered for redemption after imposing fine and penalty on the appellant.
• It has been further alleged that ascertainment of customer requirements as well as engaging with them was handled by Ms Vihari Sheth while the establishment of M/s Vihari Jewels was utilized by Mr Jiten Sheth, her uncle, for documentation as well as movement of sale consideration.
• Being Aggrieve the appellant had filed an appeal

Issue –

• Whether the seizure and imposition of fine on ‘diamond studded jewellery’ and ‘diamonds’ are in order?

Order –

• The Tribunal observed that the seized records and statements sufficed to establish the impugned goods to have been smuggled by Ms Vihari Sheth in person on her visits to India and that her uncle had participated in their disposal to the identified purchasers. The value adopted was that appraised by the Government-approved valuer who had also opined that the impugned goods appeared to be of foreign origin.
• There are no markings on the impugned goods that would attribute provenance outside India. The sole link of the goods with foreign sourcing is frequency of travel of Ms Vihari Sheth. The goods that were shown to have been smuggled with the person concerned obligated to establish his lack of illicit association thereto, here the attempt has been to impute that Ms Vihari Sheth is a smuggler, abetted by Mr Jiten Sheth, of the goods associated with them which, unable to defend themselves, are assumed as having been smuggled.
• Absence of the persons allegedly concerned with the entire exercise from investigations should not, in the absence of legally satisfied presumption, be construed to their detriment. In the absence of recourse to section 123 of Customs Act, 1962, the linkage of the several inferences and suppositions must be established with material and/or oral evidence to be compliant with normative requirement of customs officials having to establish that one or the other reasons for confiscation under section 111 of Customs Act, 1962 are manifest. 
• It was also finds that without evincing illicit trafficking, in the form in which it was recovered from customers, from outside the country, even by the stretched framework of preponderance of probability, there is no onus on the appellants to establish that the conjectures entertained by customs authorities are incorrect.
• Hence the impugned order is set aside and appeal is allowed.