2019 (12) TMI 656 - AT - Customs

Smuggling - Gold - bills produced by the appellants in dispute - appellants are aggrieved by the confiscation of gold which was initiated on the interception of Shri S. Ramki and Shri P. Dilli Raja at the Korrukupet railway station - power of Commissioner (Appeals) to remand the case - Section 128A of the Customs Act, 1962 - HELD THAT - Instead of confining himself to comparing or ascertaining the fact after obtaining certified copy of the bail application, has conducted re-adjudication as to whether bills are genuine or not. It is however recorded by him that bills were not available during seizure and that these were submitted to court later. Needless to say that the bail application was filed before court only after arrest and seizure. He does not state that the bills were not mentioned in the bail application. Ld. Counsel has furnished certified copy of bail application submitted before the George Town Court, Chennai. Ld. A.R has countered the said application submitting that the impression of the seal seen on the application is dated 20.03.2014 and that too of Economic Offences Court at Egmore and therefore the certified copy cannot be relied. On perusal of the bail application furnished before me which is seen in page 12 of the compilation, the docket sheet of the bail application shows that it was filed on 01.03.2014. The Court has given the number as M.P.No.420/2014. The notice of the application is seen received by the Prosecutor on 01.03.2014. The order granting bail was passed by the Metropolitan Magistrate, George Town on 03.03.2014 - the doubt raised by the Commissioner (Appeals) whether the appellants were in possession of the bills at the time of filing bail application itself, stands eliminated. The bail application has been countered by the Ld. A.R on the basis of the impression of seal seen on the main application. This document is photocopy of a certified copy obtained by the appellants from the Magistrate Court, Egmore. The application for certified copy was made on 2.11.2017 and certified copy was delivered on 9.11.2017 from the impression of seal made by copyist Superintendent for issue of certified copy - it can be reasonably inferred that the seal seen on the main bail application is the impression of the seal by the Egmore Court when the case file was received by the said court. Since the seal of issuing certified copy is present on this document I do not find any reason to disbelieve the same. Therefore, it can be concluded that the appellants were in possession of the bills dt.18.2.2014, 19.2.2014 and 22.2.2014 at the time of filing the bail application itself. Minor discrepancy alleged by department to the bills - HELD THAT - The only discrepancy noted by the department, is that in the bill No.366, the purchaser is shown as Mr. Ramachandran, Moreh, Manipur whereas in the carbon copy kept by the seller, the name is written as V.Ramachandran, Moreh. There is no discrepancy or difference with regard to the description of gold. In para 11 of the earlier order by Commissioner (Appeals) he has discussed this aspect. The sellers have given statements admitting sale of gold vide such bills to the appellants. The books of account kept by the sellers in their ordinary course of business also reflects the transaction. Except for slight difference in the name mentioned in one bill there is no serious discrepancy. There is nothing to suspect that the bills were created at a later stage. The findings made by Commissioner (Appeals) vide order dt. 28.9.2017 ought not to have been interfered by the LAA - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Confiscation of gold.
2. Legitimacy of bills produced as evidence of gold purchase.
3. Authority and scope of remand by Commissioner (Appeals).
4. Verification of bills in relation to bail application.

Issue-wise Detailed Analysis:

1. Confiscation of Gold:
The appellants were intercepted by the Central Crime Branch, leading to the recovery of gold and subsequent registration of a crime under Section 41 read with 102 Cr.P.C. The Customs department later took over the investigation and issued a show cause notice proposing confiscation and penalties. The original authority confirmed the confiscation and imposed penalties, which were upheld by the Commissioner (Appeals). However, the appellate tribunal found that the appellants had sufficiently established the purchase of gold through bills and that the department's assumptions were unfounded. Consequently, the impugned order was set aside, and the appeals were allowed with consequential reliefs.

2. Legitimacy of Bills Produced as Evidence of Gold Purchase:
The appellants produced bills from Rashid Jewellery and Radhika Jewellery in Imphal to prove the purchase of the gold. The department initially rejected these bills, questioning their authenticity. However, investigations revealed that the sellers confirmed the transactions, and the books of account reflected these sales. Although minor discrepancies were noted, such as slight differences in the name on the bills and carbon copies, the tribunal found these to be inconsequential. The Commissioner (Appeals) had earlier observed that the bills should not be dismissed as non-genuine based on these minor discrepancies.

3. Authority and Scope of Remand by Commissioner (Appeals):
The Commissioner (Appeals) remanded the matter to the original authority to verify whether the bills were mentioned in the bail application, which would confirm their authenticity. However, the original authority conducted a de novo adjudication, which was beyond the scope of the remand. The tribunal noted that the original authority should have confined itself to verifying the bills against the certified copy of the bail application, as directed by the Commissioner (Appeals).

4. Verification of Bills in Relation to Bail Application:
The tribunal examined the bail application and found that it contained references to the bills, thus eliminating the doubt raised by the Commissioner (Appeals) about the bills being created later. The tribunal concluded that the appellants were in possession of the bills at the time of filing the bail application, and the bills were genuine. The tribunal also addressed the department's argument regarding the seal impression on the bail application, finding it reasonable to infer that the seal was from the Economic Offences Court at Egmore, where the case files were transferred.

Conclusion:
The tribunal found that the appellants had sufficiently demonstrated the lawful purchase of the gold through genuine bills. The original authority's decision to confiscate the gold and impose penalties was based on assumptions and was not supported by concrete evidence. The tribunal set aside the impugned order, allowing the appeals with consequential reliefs.

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