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TMI Blog1998 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount 1. Shri Gordhan Gamanani Rs. 10,000/- (Rupees ten thousand only) 2. Shri Sudesh Kumar Mittoo Rs. 25,000/- (Rupees twenty five thousand only) 3. Shri Vasu Gamanani Rs. 10,000/- (Rupees ten thousand only) 4. Shri Sandeep Kumar Sharma Rs. 2,000/- (Rupees two thousand only) 5. Shri Ashok Sharma Rs. 2,000/- (Rupees two thousand only) 6. Shri Kanhaiyalal, Prop. M/s. T.K. Saraf, Ajmer Rs. 2,000/- (Rupees two thousand only) 7. Shri Harish Kumar M/s. Deta Ram Gormal, Ajmer Rs. 2,000/- (Rupees two thousand only) 8. Shri Ramesh Gidwani Rs. 10,000/- (Rupees ten thousand only) 9. Shri Prem Singh Rs. 10,000/- (Rupees ten thousand only) 10. Shri Jethmal Stamp Vender Rs. 10,000/- (Rupees ten thousand only) In the impugned order, the ld. Commissioner in the finding portion has noted that the case was in performance of a secret information the Custom Officers intercepted Shri Sudesh Kumar Mittoo at the Jaipur Railway Station from a first class compartment of Ahmedabad-Delhi M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of returning to India. A copy of the affidavit dated 25-8-1992 of Shri Ramesh Gidwani which indicated that 42 foreign marked gold biscuits were imported and Customs duty was paid vide B. R. No. 15342, dated 16-6-1992 at the time of his return to India and that out of 42 foreign marked gold biscuits, he has given 3 foreign marked gold biscuits to M/s. T. K. Saraf, Ajmer for making ornaments and on return from foreign, he would have collected the same after making payment of repair charges. Ld. Commissioner after recording the statement has held that on going through the statements of S/Shri Ramesh Gidwani and Prem Singh recorded during the course of investigations, both of them had admitted to have brought foreign marked gold biscuits on which necessary Customs duty was paid. He has noted that all of these foreign marked gold biscuits were disposed of at Delhi by Shri Vasu Gamanani and a sum of Rs. 10,000/- was paid to each as remuneration charges. He has noted their admission that their economic condition was not so sound to have purchased such a large quantity of foreign marked gold. Those foreign marked gold biscuit were arranged by S/Shri Vasu Gamanani and Ashok Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted to have been obtained the foreign marked gold biscuits from Shri Ramesh Gidwani and Prem Singh, covered by referred baggage receipt; however in both the cases 84 foreign marked gold biscuits were brought by Shri Ramesh Gidwani and Shri Prem Singh and those were disposed of at Delhi immediately on their arrival at Delhi through Shri Vasu Gamanani. Therefore, he has concluded that the stand taken that the foreign mark gold biscuits were legally imported and were given to the noticees/dealers does not stand to reason and hence he has held that it is clearly proved that the foreign marked gold biscuits given by noticees/dealers to Shri Mittoo were smuggled foreign marked gold brought into India in contravention of Section 7C and Section 11 of Customs Act, 1962 read with Section 3(1) Section 3(2) of Foreign Trade (Development Regulation) Act, 1992 rendering thereby the same liable for confiscation under Section 111(d) of the Customs Act, 1962. He has held that the noticees have also failed to discharge the burden cast upon them under Section 123 of the Customs Act, 1962. As regards the plea that the noticees/witnesses were not produced for cross examination, the ld. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, some gold pieces and some pure gold (ii) then he went to the shop of Dataram Golomal and met with Harishji and delivered 780 grams of gold ornaments as per their orders and received 900.450 grams gold which consisted of 4 Pattras of gold, some pieces of gold and some pure gold; (iii) After that the appellant went to M/s. R.R. Sarraf and met with Mr. Sandeep Kumar Sharma and delivered gold ornaments weighing 980.790 grams as per their orders and had to receive 1298.450 grams gold from them which included old balance of 366.750 grams. Shri Sandeep asked him to come on the next day and (iv) Thereafter the appellant went to M/s. B.R. Sarraf and met with Ashok Kumar Sharma and delivered 548.470 grams gold ornaments as per their orders and received 2 pattras of gold, some pieces of gold and some old gold in the shape of Dali total weighing 723.880 grams. He has also received his labour charges from the above jewellers. The above jewellers also obtained signatures of Shri S.K. Mittoo on gold issue vouchers regarding issuance of gold to Shri S.K. Mittoo and gave these vouchers to the appellant to carry along with the gold. It is his case that on 10-1-1993 he met with Sandeep Kumar Sharm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders from Magistrate, he was taken back to customs office. On 14-1-1993, Shri Sandeep Kumar Sharma was taken by the Customs Officers to the Central Jail. He had made a complaint in Bail application before the Sessions Judge, Jaipur on 16-1-1993. He had produced the documents to show the legal import of gold by Ramesh Gidwani and Prem Singh and procurement of gold by the jewellers of Ajmer and issuance of the gold to the appellant by the jewellers of Ajmer were made including the copy of Passport, Baggage Receipts, Agreements, gold receipt vouchers and gold issue vouchers. He submits that he was enlarged on bail on 19-1-1993. On 25-1-1993, he retracted the statement by filing an affidavit before the Collector, Jaipur. He submits that on 27-1-1993 the representation and affidavit of Ashok Kumar was submitted to the Collector, Jaipur along with the documents including the affidavit of Kanhaiya Lal, Harish Kumar and Sandeep Kumar Sharma. A telegram dated 1-4-1993 was also sent on behalf of Shri Prem Singh who imported the gold legally after payment of Customs Duty. 5. Ld. Advocate after narrating the sequence of the above matter and also filing a written brief on that aspect, fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shri Mittoo in his first statement itself had spoken about injury to his person. He was limping and carrying medicine and prescriptions on his person. He has produced medical certificate from a doctor who is in Amritsar, who could not have known about the officers dealing with Mittoo, yet the doctor certified that the fracture is due to beating by Customs Officer, which is not a correct one. The panchnama itself stated about Mittoo being found limping when he got down from the train. The officers had recovered one diary and 9 slips, which has been correctly recorded in the panchnama. There were no other statements recorded. The goldsmith who tested the seized goods has certified that Item Nos. 1-39 had 99% purity; only S. No. 40 shows, 75% purity. Ld. DR pointed out that Sandeep Sharma has not spoken of baggage receipt and has denied owning at the seized items. He further pointed out that all the jewellers have given letters to Collector on 25-1-1993 which are identically worded and hence the manner in which they represented and spoke was contrary to the facts from their unretracted admissions, hence the Collector was prompted to state that the evidence produced is an after thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have given the gold to the jewellers. Shri Ramesh has also not come forward to claim the gold. Hence ld. DR submits that it clearly points to the smuggled nature of the gold. Shri Prem Singh and other jewellers have admitted the smuggled nature of the gold biscuits, so also Ashok Gamanani, Vasu Gamanani and Goverdhan financers. He also pointed out that there is no reference to the telegram of Shri Prem Singh of alleged retraction, in any of the retracted statements or about the statement having obtained by force. Ld. DR also pointed out that Goverdhan Gamanani has not retracted from his statements and these statements speaks about the smuggled nature of the gold. Even the affidavits were filed by them after they received the show cause notice. He also pointed out that Shri S.K. Mittoo has not explained the nature of jewellers to be made and who had booked orders for the same. Hence it shows that the statements are also made up later by them. Ld. DR also pointed out that baggage receipt has not connection with the seized gold. As it would take more than two hours to prepare panchnama, the officer had taken Shri S.K. Mittoo to office and had prepared there and no panchnama was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Square piece . S. No. 40 has the same description along with the following words in the brackets In the shape of paper weight . The S. Nos. 1 to 32 shows purity of 99.9% while S. Nos. 33 to 39 shows purity of 99.0% of gold. While at S. No. 40 shows purity of 75.0% of gold. The panchnama mentions about Sudesh Kumar having stated that he has fallen and has sustained some sprain. Some medicines were available for pain and some medicines were procured by the officers. The panchnama stated that the officers questioning him to produce legal documents and bills, Sudesh Kumar had disclosed that he did not have any legal bills or documents and that he had purchased the gold at Ajmer from different dealers in the shape of foreign marked gold biscuits which he got converted into pattras to avoid detection by Customs Officers and police, through a machine and some pieces were got hammered and cut into pieces. This work he got it done at Ajmer. During this process the foreign markings were removed. Panchnama also states about gold being examined and purity tested through Om Prakash Soni, who certified that the gold is of foreign origin and determined the purity of the gold also. Sudesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sarraf. From him he had taken 851 grams gold which consisted of 3 pattras of foreign marked gold biscuits, after delivering 800 gram of gold in exchange. He mentioned about his having been gone to Detaram Golomal and delivering 780 grams ornaments as per their orders. Harishji son of Detaram transacted the business who gave him 900.450 grams gold against ornaments weighing 780 grams. He gave him pattras of 4 gold biscuits and some pieces of foreign gold biscuits and pure gold. He went to shop of R. R. Sarraff where he met Sandeep Kumar Sharma, who is son of Shri Rameshwar Lal Sharma, proprietor of the shop and who looks after the transactions at the shop. He delivered ornaments weighing 980.790 grams to Shri Sandeep Kumar, as per their orders and he had taken 366.750 gram gold from R.R. Sarraf, as per balance of last amount and he stated that after giving ornaments, he had now to receive 1298.450 gram gold. He was asked to come tomorrow for taking the said gold. Then, he went to B. R. Sarraf, where he met with Ashok Kumar Sharma, who looks after the transactions at the shop. He delivered him 548.470 gram gold ornaments as per their order and in exchange he gave him 2 pattras of for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still due from them. Slip also contained the account of B. R. Sarraf to whom he had given ornaments of 1168.990 grams gold, out of which 548.470 gram gold ornaments were given on 9-1-1993. He mentioned that B. R. Sarraf gave him 723.880 gram gold which included old gold also and the remaining account is still due. The Slip No. 3 and Slip No. 4 contains orders given by T.K. Sarraf and R.R. Sarraf. Slip No. 5 is the patient identity card of K.C. Memorial Eye Hospital which is in his name. Slip No. 6 is the ticket from Amritsar to New Delhi. By this ticket he had travelled. Slip No. 7 is the receipt of additional ticket fare which he paid from Delhi to Rewari. Slip No. 8 is the Bill of a shop Desika which is situated at Bapu Bazar. Slip No. 9 is the Doctor s prescription which he paid from Brindavan. Slip No. 10 is the pocket telephone diary. He was again examined on 13-1-1993 on which date he confirmed that period 11-1-1993 and 12-1-1993 as correct. The statement of Sandeep Kumar Sharma was recorded on 11-1-1993 and 12-1-1993. He has given details of his father, his sisters, wife, father-in-law and about his business details including telephone numbers. He mentioned about search c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo. However, on 27-1-1993, Shri Ashok Kumar Sharma, Working Partner came up with an application for the Collector claiming the gold and producing baggage receipt by Shri Ramesh Gidwani along with copy of passport of Rakesh Gidwani and Voucher Nos. 118 and 119 along with affidavit with enclosures. Likewise, Kaniya Lal, Proprietor of M/s. T. K. Sarraf has also come up with an application on the same date along with photocopy of voucher and enclosing his affidavit. There is also an agreement for trust executed by Shri Ramesh Gidwani on Rs. 5/- stamp paper. A similar claim has been filed by Shri Harish Kumar and Shri Detaram Golomal Sarraf, who have claimed the gold on the basis of vouchers received with agreement along with affidavit. Shri Sudesh Kumar Mittoo by his representation dated 25-1-1993 to the Collector has given a different version about whole thing and has claimed both the gold and cash on the basis of affidavit and other documents relied by Shri Ramesh Gidwani and Shri Harish Kumar. It is through these documents, they are making out a different case which calls for determination or scrutiny as it has to be seen as to whether these evidences are acceptable and as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot know M/s. T. K. Sarraf and M/s. Deta Ram Golomal nor he gave any type of gold to above firm for making the ornaments as his economic condition was poor. Statement of Shri Gordhan Gamnani who is younger brother of Shri Vasu Deo Gamnani was recorded by the officers on 2-4-1993, who confessed that at Delhi Airport, he took 42 F.M. gold biscuits from Shri Prem Singh and disposed of all in Delhi on the same day. He also confessed that M/s. T. K. Sarraf and M/s. Detaram Golomal were his good friends. They came to him and asked that one person had been caught by the Customs authorities at Jaipur so they were in need of back dated agreement. Shri Kanhaiya Lal, owner of M/s. T. K. Sarraf brought two stamp papers also. Thereafter, he went to the residences of Shri Prem Singh and obtained his signature on stamp papers and Shri Kanhaiya Lal gave him Rs. 4,000/- for his work. Statement of Shri Ramesh Gidwani was recorded on 1-4-1993 and he stated that he came to India on 16-6-1992 after stay at Dubai. One person named Shri Ashok who was his neighbour gave him 42 FM gold biscuits and $ 3900/- for paying Customs duty in India. As soon as he reached Delhi one person named Shri Vasu met him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Kumar have confirmed the correctness of their statements. The subsequent agreement and the demand vouchers produced did not corroborate their statements. Moreover, the stamp vendor himself had admitted that he had not sold the stamp papers to the concerned persons and the entries were false. It is also surprising as to how these agreements could be accepted when Shri Prem and Shri Ramesh did not leave the gold with the jewellers. It is also not believable that such expensive gold, could have been left for such a long period and that the jewellers could not handed over the gold for making the jewellery, when, in fact, Shri Sandeep Kumar had been meeting Shri Sudesh Kumar and transacting business. It is also seen that all the jewellers have given identical worded claims including the details in the affidavit. It is strange as to how all the jewellers could have had these gold pieces and all could have given similar affidavits and statements which does not appears to be natural. There are number of contractions and loopholes in the case made out by the jewellers and Shri Sudesh Kumar. Even the affidavit of trust executed by the persons namely, Shri Prem, Shri Harish Kumar and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire Sl. Nos. 1 to 40 as of foreign marked gold biscuits and its confiscation is required to be confirmed. As regards the confiscation of Rs. 25,000/- Indian currency, it is not possible to say that this currency was as a result of transaction of smuggled gold biscuits. Gold biscuits have been sold by the jewellers to Shri Sudesh Kumar. The cash pertained to him and this cash was not out of smuggled gold. Therefore, confiscation of Indian currency is set aside. It is also seen that the Collector has not given detailed reasoning for confiscation of Indian currency in terms of reply given by Shri Sudesh Kumar. Therefore, confiscation of Indian currency is set aside. It is seen that penalty imposed on Shri Gordhan Gamnani is Rs. 10,000/-. Shri Gordhan Gamnani has not filed any appeal. The appeal has been filed by Shri Sudesh Kumar, which has been imposed penalty of Rs. 25,000/-. This penalty amount is very small as against the value of seized gold is Rs. 14,23,355/-, the same is confirmed. The penalty imposed on Shri Sandeep Kumar Sharma, Shri Kanhaiyalal and Shri Harish Kumar is only 2,000/- and hence the same is confirmed. In the result, the order of confiscation of gol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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