9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (4) TMI 444 - AT - CustomsSmuggling - Gold of foreign origin - Absolute Confiscation - town seizure - reliability of statements/retraction of statements - cross-examination of witnesses - recording of statements in gross violation of order given by the Apex Court in the case of Shafhi Mohammad vs The State of Himachal Pradesh 2018 (4) TMI 1830 - SUPREME COURT - onus to prove u/s 123 of CA - HELD THAT - It is found that the owner of the gold in question Mr. TPK, at the very initial stage of being questioned by Revenue, has stated that the gold is out of stock in trade. Further, he has lead evidence that as per his stock register, he was having 6303.804 gms of gold. Thus, issue of 1431.61 gms of gold, after adjusting the sales made till 23.08.2020 on the date on which gold in question was sent for conversion into ornaments through his employee Mr. CNR, stands fully explained. The Adjudicating Authority has made an attempt to compare the stock position as on 30.09.2020 which is not at all relevant and is wholly mis-conceived. In case of ascertaining stock position the relevant date is the date on which availability is claimed, which is fully satisfied in the facts of the present case. It is further found that the appellant has also shown and accounted for the seizure of 1431.61 gms of gold by the DRI, in his books of accounts, which is also reflected in their balance sheet. It is further found that both Mr. CNR and Smt. Padma Priya. V, of M/s JRV Jewellers have retracted their statements in reply to SCN. Further, it is found that these persons, in spite of the retraction being in the knowledge of Revenue, were not examined by the Adjudicating Authority in the adjudication proceedings. Thus the retraction goes un-rebutted. Further, it was the onus of the Revenue to establish that the statements were given voluntarily without any pressure or duress, as held by the Hon ble Supreme Court in the case of Vinod Solanki 2008 (12) TMI 31 - SUPREME COURT . It is an admitted fact that the seizure is by way of town seizure and further there were no markings on the gold bar/pieces indicating foreign origin. Further, it is evident from the report of the valuer that the bars are of irregular shape and size being of the weights 538.980 gms/842.550 gms/43.6 gms/6.480 gms. Thus, the shape and weight of the bars also speak for itself that these are not of any foreign origin as it is known in the trade circle that gold of foreign origin is of standard weight and shape of 100 gm/1 kg and also has the marking of the refiner with the unique serial number. The appellants have submitted various documents in support of their contention as regards source of gold being extract of their books of accounts and registers, financial statements like balance sheet and profit and loss account, copy of GST returns, copy of challan issued for sending gold to Coimbatore through Mr. CNR. Such documents have not been found to be untrue. Accordingly, the appellants have discharged the onus under section 123 of the Customs Act - the entire proceedings are vitiated as SCN has been issued after more than 6 months from the date of seizure. The appellant Mr. T. Pavan Kumar shall be entitled to release of 1431.61 gms of 24 ct gold and if the same has already been sold, shall be entitled to the sale proceeds with interest, as per Rules - the impugned order set aside - appeal allowed.
Issues Involved:
1. Legitimacy of the confiscation of gold. 2. Validity of the statements recorded by the DRI. 3. Compliance with legal procedures and timelines. 4. Burden of proof under section 123 of the Customs Act. Summary: 1. Legitimacy of the confiscation of gold: The Appellant, Mr. TPK, a partner in M/s Annapoorna Gold Smiths, sent 1431.699 gms of gold with Mr. CNR to Coimbatore for purchasing ornaments. The gold was seized by DRI officers on 25.08.2020, suspecting it to be smuggled. The Additional Commissioner ordered the confiscation of the gold and imposed penalties on the appellants. The Tribunal found that the gold in question was part of the stock in trade of M/s Annapoorna Gold Smiths, which was duly accounted for in their books and supported by documents like balance sheets, profit & loss accounts, and GST returns. Thus, the confiscation of the gold was not justified. 2. Validity of the statements recorded by the DRI: The statements of Mr. CNR and Smt. Padma Priya were retracted, and the Tribunal noted that these statements were not corroborated by any material evidence. The Tribunal emphasized that the statements were recorded under duress, violating the Apex Court's instructions. The retraction of statements was not rebutted by the Revenue, and the Tribunal held that the statements lacked evidentiary value. 3. Compliance with legal procedures and timelines: The Tribunal observed that the SCN was issued after more than 6 months from the date of seizure, without any extension granted by the competent authority. This delay rendered the SCN invalid, and the entire proceedings were vitiated. 4. Burden of proof under section 123 of the Customs Act: The Tribunal held that the appellants had discharged the onus under section 123 of the Customs Act by providing cogent evidence that the seized gold was part of their stock in trade. The Revenue failed to bring any evidence to support their allegation that the gold was smuggled. Conclusion: The appeals were allowed, and the impugned orders were set aside. The appellant, Mr. TPK, was entitled to the release of the seized gold or its sale proceeds with interest, and Mr. T. Rama Krishna Rao was entitled to the release of the vehicle or its sale proceeds with interest.
|
