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TMI Blog2014 (6) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that Shri Dilip Ludwani had imported those gold in accordance with Customs law. Shri Nachani failed to be owner of the gold since that was never been given by him to Shri Dev Shankar Sharma who was not required to deliver the same to M/s. Marudhar Jewellers. Revenue proved its case with cogent and credible evidence discharging its onus of proof bringing out that the gold biscuits seized were without any evidence of lawful import thereof. Shri Dilip Ludwani and Shri Nachani were not owner of the seized good as is held above. Similarly when Revenue tested the gold by approved valuer, the purity as well as the foreign origin of the gold was established. Customs authority seized the gold from Shri Dev Shankar Sharma only for the first time on 22.04.2001 under Customs Act 1961 without being a second seizure from the custody of police. There was no free import of gold allowed at the material time - Decided against assessee. - Appeal No.C/464-466/2008 -Cus[DB] - FINAL ORDER NO. 52144-52146 - Dated:- 16-5-2014 - Mr. D.N. Panda and Mr. Manmohan Singh, JJ. For the Appellant : Shri K. Kant, Advocate For the Respondent: Shri Sanjay Jain, DR JUDGEMENT PER: D.N.PAND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Ludwani, Prop. of M/s Honest Bullion on 21.04.2001 at Jaipur with direction to deliver the same to M/s Padam Chand D-Nahar, Subhash Chowk, Ratan Lal Se Bafena Ke Samne, Jalgaon (Maharashtra). No supporting Bill/Voucher/Challan etc. were given to him in respect of the above gold. All his statements were consistently maintained by him on different dates at different stages. He had also stated that on the directions of Shri Dilip Bhai Ludwani, on many occasions, he carried the gold biscuits of foreign origin without any supporting documents. 1.4. During investigation proceedings, Shri Dilip Bhai Ludwani (Prop. of M/s Honest Bullion, Indore) in his statement recorded on 11.05.2001 under Section 108 of Customs Act, 1962, deposed that he is acquainted with Shri Dev Shankar Sharma for the last two years and he is employed in the firm M/s M.P. Bullion, his sister concern. He also looks after the work of M/s Honest Bullion as and when required. Shri Ludwani, however denied having any involvement with the gold biscuits recovered from Shri Dev Shankar Sharma and stated that he was not available in Jaipur on 21.04.2001 for which there is no question of giving any directions by him to Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found to be false, in credible and fabricated. 2.3. As regards Shri Keshav Kumar Nachani, Prop. of M/s M.P. Bullion Indore, ld. Adjudicating Authority held that he had come into the picture only to save his relative, Shri Dilip Bhai Ludwani, Prop. of M/s Honest Bullion, Indore claiming the ownership of the seized gold biscuits designing false documents to show that the gold were not smuggled. He was penalized under Section 117 of the Customs Act, 1962. ARGUMENT ON BEHALF OF APPELLANT 3.1. Ld. Counsel Shri Krishna Kant appearing on behalf of all the three appellants challenged the adjudication order on the ground that when seizure of gold was first made by Police on 21.04.2001 and there after that was handed over to Customs Authority on 22.04.2001, the burden of proof lies on the Customs Authorities under the provisions of section 123 of Customs Act 1962 to show that the gold were smuggled. Hon ble Supreme Court in the case of Gyan Chand Ors vs. State of Punjab - 1983 (13) ELT 1365 (S.C.) held that the burden lies on the Customs to prove that the gold were of smuggled in nature. Such ruling is consistently following by Tribunal in several cases. It was also held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to M/s.M.P. Bullion and Shri Dev Shankar was employee of M/s. M.P. Bullion. He also stated that the gold were covered by bill. According to him Dev Shankar Sharma was carrying bill No.1334 dated 21.04.2001 in the name of Marudhar Jewellers of Jelgaon. A FAX copy of the bill was presented to Customs Authority by him. All documents relating to import of gold by MMTC and sale thereof to M/s. M.P. Bullion was produced by Shri Ashok Kumar. According to Shri Ashok Kumar, the original bill may have been torn by Police. Entire gold having suffered duty, there is no question of holding the seized gold to be smuggled gold. 3.6. It was further submitted by ld. Counsel that Shri Dilip Bhai Ludwani in his statement dated 11.05.2001 confirmed the statement of Shri Ashok Kumar and also Shri Keshav Kumar Nachani. He agreed that M/s. M.P. Bullion does not employ any person directly but uses the person employed by M/s. Honest Bullion being sister concern thereof. Dev Shankar was working for M/s. M.P. Bullion and on necessities he was working with M/s. Honest Bullion. He confirmed that the gold belongs to M/s. M.P. Bullion and not to M/s. Honest Bullion. 3.7. Appellant further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hankar Sharma stated on 23.04.2001 as under:- (i) He is an employee of M/S Honest Bullion, owned by Shri Dilip Bhai Ludwani Chhota Sarrafa, Indore. That concern has a branch in the same name and style situated at Jaipur, opposite MMTC Bank at Agra Road. (ii) He gets salary of Rs. 3000.00 per month from his employer, Shri Dilip Bhai Ludwani and Shri Ludwani gives him advance money per trip for carrying the Gold Biscuits. (iii) He never worked as a carrier of gold biscuits for any other firm/ person except for Shri Dilip Bhai Ludwani of M/s Honest Bullion. (iv) 24 Gold Biscuits of foreign origin were handed over to him by his employer Shri Dilip Bhai Ludwani at Jaipur on 21.04.2001 and he started travelling from jaipur to Agrta at 5PM. (v) On the directions of Shri Dilip Bhai Ludwani he travelled by Bus from Jaipur to Agra on 21.04.2001 at 5 PM and to further travel therefrom to Jalgaon by Karnataka Express with the above 24 gold biscuits concealed under his trousers. However, at Agra he was intercepted by the Police and during search, 24 gold biscuits of foreign origin were recovered from his possession. These 24 gold biscuits bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his burden to his brother-in-law Shri Keshav Kumar Nachani (Proprietor of M/s. M.P. Bullion of Indore) to escape liability under law. Shri Nachani made a false story that he purchased the gold from M/s. MMTC, Jaipur which was without any substance and evidence and unbelievable. Such MMTC plea was not before learned adjudicating authority. Therefore such plea has no consequence to the appellant 4.6. Revenue further submits that the story of delivery of the gold at Jalgaon to Marudhar was also false and plea of destruction of the bill No.1334 dated 24.01.2001 by Police and customs Authority was equally false. Shri Dev Shankar Sharma brought out truth. Fabricated statements came from Ludwani and Nachani. The story of gold purchase from M/s. MMTC was without evidence and substance. Description and number described on the gold biscuits did not match with the description in the invoice of MMTC. Appellants failed to discharge burden of proof of possession of the smuggled gold. Accordingly ld. Adjudicating authority rightly passed the order with the consequence aforesaid confiscating the gold and imposing penalty. That may not be interfered. 5. Heard both sides and perused the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fabricated. 9. The gold seized upon examination by approved valuer proved to be of foreign origin with the purity written on the gold biscuits and all such biscuits valued in aggregate at Rs.12,03,724/-. Shri Dev Shankar Sharma categorically stated that no bills/invoices or documents in respect of the gold were given by Shri Dilip Ludwani to him. That also was not controverted by him at any point of time. This discards the plea of the bill number 1334 dated 21.04.2001 issued by M/s. M.P. Bullion owned by Shri Nachani. His evidence being consistently maintained and voluntary that cannot be discarded for no good reason shown. It may he stated that Sri Dev Shankar Sharma had not given statement before police. That was given before a customs officer under section 108 of customs Act 1962 which is good evidence as law is settled. 10. Even the evidence of Shri Ashok Kumar introducing himself to be relative of Shri Keshav Kumar Nachani claiming the gold on behalf of the latter was found to be false when there was no bill bearing No.1334 dated 21.04.2001 was carried by Dev Shankar at the time of seizure of gold by Customs Authority. Shri Sharma denied specifically about the said b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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