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TMI Blog2013 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... of the gold as mentioned in the seizure list tallies with the description shown in the baggage receipts - in the case of 05 pieces of gold biscuits seized claimed to be covered under baggage receipt No.16891 - the description in the baggage receipt more or less tallies with the description mentioned in the seizure list – Thus absolute confiscation of 05 pcs. of gold biscuits seized cannot be sustained - the other one piece of gold biscuit the description mentioned in the seizure list as 'Swiss Bank Corporation', does not at all conform to the description shown in the baggage receipt no.16891 - the absolute confiscation of the other one piece of gold biscuit was upheld. Penalty u/s 112 – as confiscation of five gold coins were set aside – thus the penalty was also reduced accordingly – decided partly in favour of assessee. - C/567-568/2009 - A-68-69/KOL/2013 - Dated:- 28-2-2013 - D M Misra, J. For the Appellant: Sri S Ramesh Kumar, Adv. For the Respondent : Sri S Chakraborty, AC. (AR) PER : D M Misra These two appeals are filed by the appellant Shri M. Srinivas Rao (Appeal No.567/09) and Shri J. Satyanarayana (Appeal No.568/09) against order in appeal No.35/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. 4. The Ld. Advocate, in relation to appeal No.567/09, filed by Sri M. Srinivas Rao submitted that according to the direction of the Tribunal by order dated 28/9/1999, the baggage receipts were verified and a comparative table narrating the description of the gold biscuits and in the seizure list the respective baggage receipts and sale letters have been mentioned in the impugned order of the adjudicating authority as below: As per Search list Description of gold imported as per baggage receipt Description as shown in the sale letter dt. 7.5.1993 Description of gold Qty. weight B.R. No. Date Name of importer Description of gold imported Qty. Name of the seller Description of gold sold Qty. i) Johnson Matthey 999.0 London 10 Tolas ii) Johnson Matthey Australia 10 Tolas iii) Swisse 10 Tolas 999 Essayeur Fondeur iv) SUBS G Union Bank of Switzerland 999.9 10 Tolas Meter Assayer 2 pieces 233.350 Grams 1 piece 116.650 grams 14646 dt. 27.1.93 Mrs. Saheera Beevi A 2 gold biscuits 4900 grams Smt. A.S. Saheera Beevi i) Johnson Matthey London 99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also in the baggage receipts. He has submitted that the adjudicating authority had, therefore, rejected the vital document that holding Johnson Matthey gold bars is different gold as the name of its manufacturer was also not mentioned in the customs clearance certificate. It is submitted that non mentioning of the name of the manufacturer viz. Johnson Matthey would not make the three gold bars being anything other than gold bars of JM. They have submitted that the person who sold the gold to the appellant, bonafidely entrusted the baggage receipt alongwith sale letter in the shape of affidavit and the Department failed to prove that they were smugglers. 4.5 The ld. Advocate further submitted that initially, the charge against the appellant was that one V. Shekhar has extended the financial aid to the appellant to smuggle the gold from Kolkata to Andhra Pradesh and it was alleged that the gold biscuits were purchased by the appellant from one Shri Ganesh Karel of Kolkata. Proceedings against Shri V. Shekhar was dropped by the Commissioner (Appeals) against which the Department had not preferred any appeal nor challenged the said order which proves that the appellant was not a smu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complete name of the maker of the gold biscuits relating to 05 pcs. Gold biscuits but simply mentioned the name 'Credit Suisee' and the description 'CHI Essayeur Fondeur' ,was missing. 5.2 He has further submitted that the appellant produced the baggage receipt obtained for the purchase of gold from the NRI Mr. Kunahlan in the shape of affidavit witnessing the transaction. He has contended that in the said baggage receipt, it was mentioned that the NRI who brought the gold from abroad contained only 'Credit Suisee (10 Tolas)'. It was not mentioned about the 01 piece of gold biscuit of Swiss Bank Corpn. in the baggage receipt. The above mistake had been occurred in the baggage receipt by the Customs authority at Air Port as they did not mention the name of the maker of the gold biscuits as 'Essayeur Fondeur' underneath Credit Susisee. It is submitted that the Customs officers while clearing the goods mentioned the brand name of gold, which is, 'Credit Suisee' and the manufacturer is 'Essayeur Fondeur'. It is well known fact that Credit Suisee is manufactured and sold under the brand name of Credit Suisee. If the gold bar is Credit Suisee, then it can only be manufactured by 'Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was reported by the Assistant Commissioner of Customs (Admn.), Chennai Airport Customs through its letter dated 03.12.2007 that the baggage receipts could not be located in the records. However, they could trace out Bank Registers maintained by Customs pertaining to the period 25/01/93 to 18/02/1993 and 13/04/1993 to 09/05/1993. On verification, the entries relating to the aforesaid baggage receipts were found and they forwarded copies of the relevant pages of the said Registers for scrutiny. The Ld. A.R. submitted that after Scrutiny of the said registers it was found that the baggage receipt No.14646 dated 27/01/1993 was issued in favour of Saheera Beevi for a quantity of 4900 gms. and the amount of duty indicated was Rs.1,07,800/-. Baggage Receipt No.16891 dated 28.04.93 was issued in the name of Mr. Kunahlan for a quantity of 2335 gms. showing amount of duty of as Rs.51,370/-. The Ld. A.R. submitted that the Bank Register tallied with the copy of baggage receipt, submitted by the appellant. 6.1 The Ld. A.R. further submitted that the description contained in the baggage receipt and the descriptions mentioned on the gold seized were broadly examined by the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the impugned seized gold biscuits in dispute are not covered under legal/valid documents and thus the gold biscuits carried by the appellants after acquiring the same from some unauthorized source. Therefore, the gold biscuits which were acquired by the appellants had been smuggled into the country and the appellants have attempted desperately to prove those transactions to be legal and genuine by means of cooked up documents like letters and baggage receipts. Further, he has submitted that the gold biscuits being a notified goods under the Customs Act, 1962, were of foreign origin seized from the possession of the respective appellants, have been smuggled into India in violation of Provisions of Section 13 (1) of the Import and Export (Control) Act, 1947 read with Section 13(1) of the Foreign Exchange Regulating Act, 1973 and hence are liable to be to confiscation under section 111 (d) of the Customs Act, 1962. In support he has referred to the following case laws: Md. Akhtar-2009 (238) ELT 304 (Tri.-Kol.); Sudesh Kumar Mitto-2001 (136)ELT 100 (Tri.-Del.) Raja Ram Bohra-2009 (247) ELT 478 (Tri.-Kol.); UOI Vs. Rajendra Prabhu-2001 (129) ELT 286 (S.C.); Vishnu Narrain Others-198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. As such the impugned order is set aside and the appeals are allowed by way of remand." 8. I find that pursuant to the aforesaid remand order, the Adjudicating authority had conducted necessary enquiry about the genuineness of the baggage receipts, produced by the appellants, from the Air Customs, Chennai. Even though customs copy of the said baggage receipts could not be traced by Air Customs, Chennai, but, from the bank registers maintained by the Customs department, it was reported in the year 2007 to the adjudicating authority that the baggage receipts were genuine. After getting the confirmation of the genuineness of the said baggage receipts, the adjudicating authority had proceeded to examine the same vis-a-vis the seizure report and other evidences to ascertain whether the gold biscuits seized from the possession of the appellants, were licitly imported into India or otherwise. 9. Needless to emphasize, gold with foreign markings when recovered from the possession of a person and the person from whose possession it is recovered, fail to explain reasonably about the licit procurement of such gold to the officers, then the same is liable for seizure and confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .300 gms. and the complete description in case of one piece weighing 116.650 gms, does not at all tally with the description as shown in the Seizure list. 13. Similarly, in the case of appellant Shri M. Srinivas Rao, (Appeal No.567/09), the authorities below observed that the description of all the six gold biscuits seized from his possession and mentioned in the search/seizure list, are entirely different from the baggage receipt No.14646 dated 27/01/93. In the search/seizure list, the description of two pieces weighing 233.350 gms. was mentioned as Johnson Matthey, London, one piece weighing 116.650 gms as Johnson Matthey, Australia, whereas in the baggage receipt it has been mentioned as 'Gold Biscuits J.M'. Likewise the description of two pieces gold biscuits mentioned as 'Swissee Essayeur Fondeur' and one piece as 'SUBSG Union Bank of Switzerland' in the seizure list, but such description were not at all mentioned in the said baggage receipt No.14646 dated 27/01/93. 14. During the course of hearing the Ld. Advocate for the appellants, fairly conceded that out of 06 (Six) pieces of gold biscuits seized from Sri J. Satyanarayana, (Appeal No.568/09), (one) piece weighing 116. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other one piece of gold biscuit weighing 116.650 gms, also seized from the possession of Sri J. Satyanarayana, as ordered by the authorities below, is hereby upheld. Consequently, the penalty imposed on Sri J. Satyanarayana, deserves to be reduced and accordingly the same is reduced to Rs.20,000/- (Rupees Twenty Thousand). 17. Regarding the six pieces of gold biscuits seized from the possession of Shri M. Srinivas Rao (Appeal No.567/09), I find that the descriptions of the two gold biscuits shown in the seizure list as "Swisee-10 Tolas Essayeur Foundeur" one piece of gold biscuit mentioned as 'SUBSG Union Bank of Switzerland', do not at all tally with the description shown in the relevant baggage receipt, a fact accepted by the Ld. Advocate for the Appellant. In relation to other two pieces of gold biscuits weighing 233.350 gms. described as Johnson Matthey, London and one piece weighing 116.650 gms. mentioned as Johnson Matthey, Australia, in the seizure list, I am of the opinion that in absence of any documentary evidence, it is difficult to accept the contention of the Ld. Advocate for the Appellant that J.M be read as Johnson Matthey, London Johnson Matthey, Austra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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