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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 ..... ssession of Shri J. Satyanarayana. The said gold were seized by the officers on the reasonable belief that the same were smuggled into India. After necessary investigation, show cause notices were issued to Shri M. Srinivas Rao and Shri J. Satyanarayana on 03/11/1993 and other Noticees, namely, Y. Sekhar & Ganesh Karel proposing confiscation of the seized gold biscuits under Section 111(d) of Customs Act, 1962 and penalty on each of the Noticees under Section 112 of Customs Act, 1962. The show cause notices were adjudicated by the Deputy Commissioner of Customs on 06/11/1995 directing absolute confiscation of gold biscuits seized from the possession of both the appellants and imposed penalty of Rs.1.00 Lakh on each of the Noticees. 3. Aggrieved by the said orders, the appellants filed appeal before the Ld. Commissioner(Appeal), Calcutta. The Ld. Commissioner (Appeals) upheld the confiscation Ordered by adjudicating authority but reduced the penalty to Rs.50,000/- on the Appellants and dropped the penalty against others. Aggrieved by the said order, the appellants filed appeal before this Tribunal and vide Order Nos. A 1060 & 1061/1999-Cal dated- 28/9/1999, this Tribunal had remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that it is not in dispute that the appellant had produced evidence that the gold biscuits were purchased from the NRIs by name Mr. Konalahalan and Smt S.K. Sahira Bibi, and both of them handed over the baggage receipt alongwith the receipt of the sale in the shape of affidavits witnessing the transaction. In the baggage receipts no.14646 dt.27.01.1993 pertaining to Smt. Sahira Bibi, it was clearly mentioned as JM 42 bars and in the receipt of Mr, Konahalan it was mentioned as 10 bars. He has submitted that the said receipt did not mention three pieces of gold bars of Swiss Bank Corporation and it was a mistake that had crept into the baggage receipt by the Airport Customs Authorities. He has submitted that the Customs Officers had inadvertently not mentioned the name of the maker of the gold biscuits as referred to in the aforesaid table. 4.3 The ld. Adv. further submitted that the Customers officers when cleared the goods mentioned the brand name of gold which is 'Johnson Matthey', Swissee Essayeur Fondeur and SUBS of Switzerland and it is well known that JM is the manufacturer and sells the gold under brand name JM. If it is gold bar JM then it could only be that it is man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant is not a smuggler and is only a petty vendor and purchased bonafidely. 5. Regarding the Appellant Shri J. Satyanarayana, the Ld. Advocate submitted that the adjudicating authority in its order observed that the appellant was having in his possession 05 pcs. of Credit Suisee CHI Essayeur Fondeur and 01 piece of Swiss Bank Corporation. 10 tolas which is stated in a tabular form as below:- As per Search list Description of gold imported as per baggage receipt Description as shown in the Sale letter dated 7.5.93 Description of gold Qty. & weight B.R. No. & Date Name of the importer Description of gold imported Qty. Name of the seller Description of Gold sold Qty. i) Credit Suisee (999.0) CHI- Essayeur Foundeur (ii) Swiss Bank Corporation 10 Tolas MP Essayeur Foundeur 999.0 5 pieces 583.300 Grams 1 Piece 116.650 16891 Dt. 28.4.93 Mr. Kunahlan i) Credit Suisee 10 Tolas (ii) Johnson Matthey 10 Tolas London 999.0 10 Bars 10 Bars Mr. Kunahlan (i) Credit Suisee 999.0 Essayeur Foundeur (ii) Swiss Bank Corporation 999.0 Essayeur Foundeur 5 Biscuits 50 Tolas 1 Biscuit 10 Tolas Total=6 pcs. 699.950 Gms. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 smuggler, but was only a petty vendor. 5.6 The Ld. Advocate further submitted that wherever the baggage receipts were tallied with the gold seized, the gold be released to them. Earlier statement was retracted by the appellant as soon as he was released from the custody of the police. Finally he has submitted that the five gold biscuits which tallied with the baggage receipt produced before lower authorities be released to them and in the case of one gold biscuit for which the appellant failed to produce cogent evidence and documents and it is not tallying with the baggage receipt, they prayed to pass an appropriate order considering the facts that the appellant is not a smuggler and is only a petty vendor and purchased bonafidely. 6. Per contra, the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Baggage Receipt No.16891 dated 28.04.93 does not find mention in the relative sale letter. 6.2 The ld. A.R submitted that from the said analysis, it is evident that description of gold biscuits indicated in the baggage receipts did not tally or in any manner and conform with the particulars mentioned either in the sale letter or in the seizure list. Thus, the credence underlined by the appellant on the said sale letters and the baggage receipts in support of their legal acquisition of the impugned gold biscuits do not bear out to be true. 6.3 The Ld. A.R. further submitted that the sale letters cannot be considered as documents of title to goods as defined under sub-section (4) of section 2 of the Sale of Goods Act, 1930. It is his contention that every transaction during the course of business has to be arrived at through certain documents which would vest with the transfer and makes him the legal possessor/owner of the goods on the basis of the said documents. In the letters produced titled as sale letters, were simply in the nature of contract, where possession of goods was said to have been transferred for monetary consideration. Hence it cannot take the place of a docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the of the same on the short ground that the same was not accompanying the gold Biscuits at the time of seizure. This approach of the Deputy Commissioner is not in accordance with law. The gold Biscuits, when purchased from a person who has legally imported the same are not supposed to be accompanied with documents all the time. It is a fact that another baggage receipt was recovered from the appellant's possession on which comparison did not tally with the gold biscuits in question. This factor shows that baggage receipt showing legal importation of the gold can be tallied with these gold Biscuits and it is not that any baggage receipt can be used for showing the import of the gold biscuits. If the baggage receipt produced by the appellant is tallied with the gold biscuit in question, the confiscation on the basis of the other circumstantial and collateral evidence in the shape of the statement of the person and in the manner of the concealment of the gold etc. is not justified. Adjudicating authority rejected the baggage receipt summarily without any further verification of the appellant's claim. In the circumstances, I am compelled to send the matter back to the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty had been discharged. I am of the view that the sale letters issued by the respective vendors, in the present circumstances of the case, no doubt relevant and might carry some evidentiary value, but would definitely require corroboration in the form of documentary evidence of licit import of the gold by the respective NRI vendors. The only documentary evidence available on record as produced by the appellants, was copies of the baggage receipts mentioned in the sale letter, which on verification were found to be genuine by Air Customs, Chennai. However, it is quite necessary to examine and ascertain whether the description of the gold as mentioned in the seizure list tallies with the description shown in the baggage receipts. 11. The adjudicating authority analyzed the description/markings on the gold biscuits mentioned in the seizure/search list and the description shown in the baggage receipt, and also the description referred to in the sale letters, in a tabular form, mentioned above in relation to each of the Appellant. 12. After analysis of the description of gold biscuits, recorded in the search/seizure list and that were mentioned in the baggage receipts, the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of 05 (Five) pieces of gold biscuits seized from the possession of Sri J. Satyanarayana (Appeal No. 568/09) weighing 583.300 gms. claimed to be covered under baggage receipt No.16891 dated 28.04.93, the description in the baggage receipt more or less tallies with the description mentioned in the seizure list, except the expression 'CHI-Essayeur Foundeur'. It is not uncommon that while writing the description of the gold, on the baggage receipt, imported through Airport , the Customs Officers in all probability could have written the broad outlines, inscribed on the gold biscuits, instead of detail description inscribed on the gold biscuits. The other one piece of gold biscuit weighing 116.650 gms seized from the possession of Sri J. Satyanarayana, 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 dt. 28.04.1993, which fact has been accepted by the Ld. Advocate for the Appellant. 16. In these circumstances, absolute confiscation of 05 (Five) pcs. of gold biscuits weighing 583.300 gms., seized from the possession of Shri J. Satyanarayana (Appeal No. 568/09), cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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