9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (10) TMI 417 - AT - CustomsSmuggling of gold - Bonafide belief - whether Shri Om Prakash Verma has attempted to smuggle the gold to Nepal or not - Held that - Case of the revenue is that they were having an intimation that some person will smuggle the gold through this check post in Nepal and they have called the pancha for the same. But in the cross examination of one of the pancha Shri Madan Tiwari.it is clear that when he was called at Khunwa office Shri Om Prakash Verma was very much present over there. It means that when the panchas were called Shri Om Prakash Verma was there and as per the panchnama the panchas were present before Shri Om Prakash Verma was apprehended. Therefore, the panchanama was doubtful. - gold is of foreign origin and primary burden of proof lies on the respondent and Shri Anand Kumar Proprietor of M/s. Abhishek Jeweler has produced the invoice in support of the procurement of the gold. Therefore, primary burden of proof has been discharged by the respondent. Now, it is for the revenue to prove that the gold in question was intended to export to Nepal by unfair means which revenue has failed to prove. - Moreover, when panchnama itself is doubtful, therefore, statements have no relevance. - If the statement is retracted after a gap of time the retraction is not admissible. In this case panchnama and statement are doubtful with the cogent evidence. Moreover, the statement has not been corroborated by any tangible evidence to testify the statement of Shri Om Prakash Verma - Decided against Revenue.
Issues:
1. Smuggling of gold to Nepal in violation of Customs Act. 2. Ownership and procurement of gold. 3. Validity of statements and panchnama. 4. Burden of proof on the respondent. 5. Adjudication and penalties imposed. Analysis: Issue 1: Smuggling of gold to Nepal in violation of Customs Act The case involved the apprehension of an individual attempting to cross the border with gold of foreign origin. The Revenue alleged smuggling in contravention of the Customs Act. The key contention was the intention to export gold to Nepal unlawfully. The Adjudicating Authority confiscated the gold and imposed penalties. The Ld. Commissioner (A) set aside the order, leading to the Revenue's appeal. Issue 2: Ownership and procurement of gold The burden of proof initially rested on the individual caught with the gold, but it was argued that the ownership was established by the proprietor of a jewelry store through genuine invoices of gold purchase. The artisans confirmed receiving gold from the store owner for making jewelry, supporting the claim of legal procurement. Issue 3: Validity of statements and panchnama Challenges were raised regarding the credibility of statements and the panchnama. Doubts were cast on the voluntariness of the individual's statements and the accuracy of the panchnama. The Ld. Commissioner (A) questioned the reliability of the panchnama and the statements recorded, leading to a retraction of the initial statements. Issue 4: Burden of proof on the respondent The respondent successfully discharged the primary burden of proof by providing legitimate invoices for gold procurement. The Revenue failed to prove the intended smuggling of gold to Nepal by unfair means, shifting the burden of proof back to the Revenue. Issue 5: Adjudication and penalties imposed The Adjudicating Authority had imposed fines and penalties, which were contested and subsequently set aside by the Ld. Commissioner (A). The appeal by the Revenue sought to overturn this decision, but the Tribunal upheld the Ld. Commissioner (A)'s ruling, dismissing the Revenue's appeal. In conclusion, the Tribunal found no infirmity with the Ld. Commissioner (A)'s decision and upheld the dismissal of the Revenue's appeal, emphasizing the lack of concrete evidence supporting the smuggling allegations and the successful discharge of the burden of proof by the respondent. This detailed analysis covers the key issues raised in the legal judgment, providing a comprehensive understanding of the case and the Tribunal's decision.
|
