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TMI Blog2015 (10) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... here and as per the panchnama the panchas were present before Shri Om Prakash Verma was apprehended. Therefore, the panchanama was doubtful. - gold is of foreign origin and primary burden of proof lies on the respondent and Shri Anand Kumar Proprietor of M/s. Abhishek Jeweler has produced the invoice in support of the procurement of the gold. Therefore, primary burden of proof has been discharged by the respondent. Now, it is for the revenue to prove that the gold in question was intended to export to Nepal by unfair means which revenue has failed to prove. - Moreover, when panchnama itself is doubtful, therefore, statements have no relevance. - If the statement is retracted after a gap of time the retraction is not admissible. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on the instruction of Shri Babloo, proprietor of the shop. He also told that six months earlier also he delivered the foreign gold to Shri Ram Lakhan Verma after carrying it to Nepal. Shri Om Prakash Verma could not produce any valid document relating to export / import and sale of the recovered gold. Therefore, on the bonafide belief that recovered gold was attempted to be smuggled to Nepal in violation of Section 11' read with Foreign Trade (Development and Regulation) Act, 1992. Thereafter, the gold pieces and the pant were seized under section 110 of the Customs Act 1962. Shri Om Prakash Verma admitted in his statement that he was going to deliver gold to Shri Ram Lakhan Verma and Shri Prem Kumar, resident of Nepal. Again on 15.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f contract for carrying gold to artisans engaged in jewelry making. He admitted that gold recovered from Shri Om Prakash Verma on 14.02.2012 belongs to him and that this gold has been purchased from registered businessmen as he was having an order for delivering furnished jewelry to some local people and to complete his commitment he has given gold to Shri Om Prakash Verma to deliver it to local artisan Shri Santosh Kumar and Shri Ved Prakash both resident of Khunwa and Shri Deepak Kumar Verma and Shri Rajkumar Verma both resident of Soharatgarh. He also admitted that this gold pieces recovered from Shri Om Prakash Verma belong to him which have been purchased from registered businessmen. With regard to Shri Ram Lakhan Verma and Shri Prem K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted to Nepal in contravention of provision of Customs Act 1962 read with relevant provisions of Foreign Trade Policy. He further submitted that Ld. Commissioner (A) fell an error doubting the panchnama in view of the cross examination of one of the witness. He further submitted that the Ld. Commissioner (A) fell in error to allege that statement of Shri Om Prakash Verma was recorded under coercion and pressure and it was not a voluntary statement. In fact, the statement was voluntary and same has been affirmed on 15.02.2012 and there was no injury on him he was medically fine. To support his contention he relied on the decision in the case of Jasmat Parshottam Ganesh Vs. State of Gujarat-1995 (76) ELT 548 (Guj) , Akai Impex Ltd. Vs. CCE M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged by the respondents. Moreover, the fact was that Shri Orn Prakash Verma visited the artisans on 14.02.2012 in the morning when they were not available in their shop. He was asked to come in the afternoon. This fact has been affirmed by the statement of the artisan and the statements of the artisans have not been controverted by any cogent evidence. Moreover, the main reliance of the revenue is that Shri Om Prakash Verma has made a statement on 14.02.2012 which has been affirmed by 15.02.2012 and same was retracted after a gap of time and same cannot be discarded. To support his contention Ld. AR has relied on various case laws but in the absence of any corroborative evidence of the statement recorded, the revenue's case does not st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubtful. Moreover, from the cross examination it is also revealed that Shri Om Prakash Verma was not caught in the presence of the panchas and as per the panchnama Shri Om Prakash Verma was apprehended in the presence of the panchas. As the panchnama is doubtful, therefore, Ld. Commissioner (A) has created doubt on the truthfulness of the panchnama. Moreover, as per the panchnama it is coming out that Shri Om Prakash Verma had to deliver the gold to Shri Ram Lakhan Verma and Shri Prem Kumar in Nepal. But these two persons were not interrogated. Moreover, not made to the parties of the proceedings. Further, it is a fact that gold is of foreign origin and primary burden of proof lies on the respondent and Shri Anand Kumar Proprietor of M/s. Ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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