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TMI Blog2011 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... ine in lieu of confiscation. Penalty on assessee and other party (who gave false evidence ) are upheld, penalty on employees are reduced and since firm is subject to penalty, penalty on partners are not justified. - C/202-206 & 529 of 2006 - - - Dated:- 18-11-2011 - Ms. Archana Wadhwa, Mr. Mathew John, JJ. Appearance: Shri K.K. Anand, Shri G.K. Sarkar and Shri Prem Ranjan, Advocates for the Appellants Shri Sonal Bajaj, SDR for the Respondent Per Archna Wadhwa (for the Bench): All the appeals are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner of Customs, Kanpur vide which he has absolutely confiscated 36 gold biscuits of foreign origin assessed to be of total value of Rs.21,83,500.80, under Section 111(d) of Customs Act 1962. In addition penalties stand imposed on the following persons in terms of provisions of Section 112 (b)(i) of the Customs Act, 1962. Name Penalty M/s. Panna Lal Banarasi Das Rs.2 lakhs Shri Pradeep Jain Rs.1 lakhs Shri Sandeep Jain Rs.1 lakhs Shri Arvind Mishra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was found that entry was made on 9.10.02, for Rs.22 lakhs in the name of Shri Laxmikant Agnihotri with narration 'being cash paid for purchasing of primary gold from Mahesh Kumar Katta, Jaipur'. But the entry could not be related to the trip made on 15.10.02 because there were similar trips made earlier on 9.10.02, 11.10.02 and 13.10.02 also as was stated by Shri Laxmikant Agnihotri and Shri Arvind Mishra. Further from statement of the Manager of M/s Surabh Gems Jewellers, Jaipur it was clear that this amount related to two purchases of 18 gold biscuits each purchased on 11.10.02 under invoice No. 1387 and Invoice No. 1404 dated 11.10.2002. 5. During the course of further investigation statements of Shri Laxmikant Agnihotri and Shri Arvind Mishra were again recorded on 18.10.02. They admitted that Shri Pradeep Jain used to provide cash to them for handing over the same to Shri Mahesh Kumar Katta for which no receipts were exchanged either at the time of delivery of cash or at the time of taking possession of gold biscuits. They also admitted that they did not have any bills or legal documents etc. pertaining to the recovered gold biscuits from them. Shri Laxmikant furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the record and that what he bought and delivered on commission basis is not entered in the records of the firm. 8. On the above basis, Revenue entertained a view that the gold biscuits recovered and seized from the possession of Shri Laxmikant Agnihotri and Shri Arvind Mishra were actually not covered by the three sale vouchers produced subsequently by Shri Pradeep Jain and the cash entry of Rs.22 lakhs shown with the date 09.10.02. As such, the Revenue was of the opinion that the seized biscuits were smuggled. Accordingly, proceedings were initiated against them by way of show cause notice dated 9.4.03 proposing confiscation of the seized gold biscuits as also for imposition of penalties on various persons. This show cause notice culminated into the impugned order of the Commissioner. 9. We have heard Shri K.K. Anand, learned Advocate for the appellants along with Shri G.K. Sarkar and Shri Prem Ranjan and Shri Sonal Bajaj, learned SDR appearing for the Revenue. 10. We find in the present case that there is no dispute about seizure, ownership of the seized gold and the fact that the persons carrying gold did not have any documents to prove that these gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its, the sale advices produced subsequently cannot be rejected. However, we find that in the initial statement of Shri Sandeep Jain on 17.10.2002, he made reference to transaction with M/s Saurabh Gem Jewellers, Jaipur only for which he had sent his staff on 9.10.2002. he was avoiding further summons for some time and the said sale invoices were submitted by Shri Pradeep Jain on 22.11.02. These invoices stand scrutinised by the adjudicating authority and it stands revealed that the rates shown for the same transaction in three vouchers are different Whereas the bill No. 203, the rate of gold per tola has been mentioned as Rs.6050/- per tola, the other two bills Nos. 204 and 205 show the rate of gold mentioned as Rs.6048/- per tola. Such small margin in rates of gold shown in the two bills could have been ignored but for the fact that the said vouchers produced by Shri Pradeep Jain are photocopies and not the original copies of sale vouchers. It is that the booklet contained the office copy of the sale vouchers pertaining to Shri Mahesh Kumar Katta, was handed over to the Customs officers on 22.10.02. However, the photocopies of the bills were retained by Shri Mahesh Kumar Kat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Gitanjali Exports Corpn. who had in turn purchased the same from M/s. State Bank of India, who had imported vide Bill of Entry No. 238/2001, dated 15.1.2001 was established on record and in these circumstances the Bench concluded that the appellants having produced on record the entire evidence, sole factor that the payment was not made will not be a sufficient factor to hold the gold was illicitly imported. 15. Similarly in the case of Mool Chand Soni vs. CCE, Jaipur reported as [2006 (205) ELT 1142 (Tri-Del)], the Bench took note of the various factors leading to legal possession of the impugned gold biscuits which was proved beyond doubt. Similarly in the case of Jitendra Pawar vs. CC, Raipur reported as [2003 (156) ELT 622 (Tri-Del)], it was observed that the appellants produced evidence on record to show legal acquisition of the goods. In these circumstances, the Bench observed that mere foreign marks are not sufficient to establish the smuggled nature of the gold inasmuch as at the relevant time, gold was freely importable and available for sale and purchase. The other decision relied upon by the appellants relates to the seizure of gold by the police and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 18. As per the above Section, in the case of prohibited goods, the Adjudicating Authority may give an option to pay a fine in lieu of confiscation. In the case of goods other than prohibited goods, the Adjudicating Authority shall give such option to pay fine in lieu of confiscation. 19. The meaning of the expression 'prohibited goods' was examined by the Supreme Court in the case of Om Prakash Bhatia Vs. CCE reported in 2003 (155) ELT 423 (SC). In view of this decision, seized goods in respect of which restriction on import subject to certain conditions are in force also are to be considered as 'prohibited goods' as defined under Section 2(33) of the Customs Act. However, even in the case of prohibited goods there is a discretion vested in the Adjudicating Authority to allow redemption of such goods on payment of a redemption fine. It is held by the Courts in many cases in the context of Section 125 of Customs Act as well as in the context of other enactments which give similar discretion, that when di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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