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TMI Blog2015 (10) TMI 2132X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2007 & C/10/2007 - FINAL ORDER NOS. A/75482-75483/2015 - Dated:- 21-8-2015 - H K Thakur,J. For The Appellant : Sri K P Dey, Adv For The Respondent : B N Chattopadhyay, Consultant Per: H K Thakur: These appeals have been filed by the appellants against Order-in-Original No. 12/CUS/CC (P)/WB/2006 dated-7/11/2006 passed by C.C. (P), Kolkata. Under this Order-in-Original dated-7/11/2006 twenty two (22) pcs.of gold biscuits weighing 2566.29 gms. (valued at ₹ 11,34,000/-) have been confiscated under Section 111 (b) (d) of the Customs Act, 1962 without giving any option of redemption to the appellants. Penalties of ₹ 2 Lakh ₹ 1 Lakh have also been imposed upon the appellants (Shri Rajendra Damani and Shri Nand Kishore Modi respectively under Section 112 of the Customs Act, 1962. 2. Shri K.P. Dey (Advocate) appeared for the appellant Nand Kishore Modi Shri B.N. Chattopadhyay (Consultant) appeared for Shri Rajendra Kumar Damani. Shri K.P. Dey (Advocate) argued that 22 pcs. of gold biscuits, having inscription of PMPO SUISSE 10 TOLAS -999.0 on two pcs. CREDIT SUISS 999.0 TOLAS on the rest, were seized by the officers of Customs during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C.C. (P), Mumbai [2000 (09) LCX 02027] that hundreds of tons of gold is being imported through baggage or special import licenses and it cannot be said that a foreign marked gold acquired in India is of smuggled nature. It was thus appellant's case that onus of gold being of smuggled nature has not been discharged by the department under Section 123 of the Customs Act, 1962. It was also argued by the Ld. Advocate that following case laws have also decided the same issue in favour of other appellants: (i) Samir Kr. Roy Vs. CCP (Calcutta) reported in 2001 (07) LCX 0153 (ii) Giridhari Dubey Vs. CCP, Kolkata - 2001 (11) LCX 0215) (iii) Kapildeo Prasad Vs. C.C. (P), Patna- 2002 (02) LCX 0099 (iv) Mohd. Aslam Vs. C.C., New Delhi- 1999 (04) LCX 0198) 3. Shri S.P. Pal (Appraiser), A.R. appearing on behalf of the Revenue argued that statement of co-accused Shri Mahendra Bahadur was not retracted even during his subsequent recording of statements in the jail. That retraction made by Shri R.K. Damani is only an after thoughtnd the purchase bills later produced cannot be accepted as valid documents. Learned A.R. strongly defended the order passed by the Adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below: 3.1 On 16/101995 at about 15.30 hrs., on interception and search of one Maruti Car, the Customs Officers found 16 pieces of gold biscuits and 4 pieces of gold strips from the underneath of front seat of the maruti car. Shri Samir Kr. Ray claimed the ownership of the gold in question. On his disclosure one more gold biscuits was recovered from under the mattress of the bed in his bed-room alongwith Indian currency of ₹ 2,53,525/-. During the course of search of the residential premises of Shri Samir Kumar Ray one Shri Subhas Chandra Saha entered his house. He also was interrogated and 6 pcs. of gold biscuits kept in his rectum was ejected. Shri Saha disclosed that he was go give the said 6 pcs. of gold biscuits to Shri Samir Kumar Ray. As the appellant could not produce any documentary evidence, showing legal acquisition of the gold in question, the same alongwithMaruti Car were seized. The Indian currency was also seized by the officers on a reasonable belief that the same was the sale-proceeds of the smuggled goods. However, the said currency stands released by the impugned order of the Commissioner. 3.2 During interrogation Shri Ray gave self-incr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj Jewellers could not be identified nor the person who had claimed to have imported the said gold in the baggage receipt. On the other hand we find that the appellant as also Shri Mansukhlal T. Bavishi of Mumbai have placed on record sufficient evidence showing sale of the gold biscuits in question. The residential address of the proprietor of M/s. Pankaj Jewellers was disclosed by Shri Mansukhlal T. Bavishi in their reply to the show cause notice. There is nothing in the impugned order to reflect upon efforts made by the Revenue to contact the proprietor of M/s. Pankaj Jewellers or to verify the bank accounts produced by Shri Mansukhlal T. Bavishi showing the payments of consideration of gold biscuits to M/s. Pankaj. It is also on record that the appellants had subsequently paid the entire consideration to M/s. Mansukhlal T. Bavishi for 21 gold biscuits in question. The observation of the adjudicating authority that the gold biscuits was not recorded in the appellant's record thus reflecting upon smuggled character of the same are not found favourable with us inasmuch as firstly the appellant was under no legal obligation to maintain any records and secondly, the appellants h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same reason, the imposition of personal penalty on Shri Mansukhlal T. Bavishi and Shri Vinay Kumar C. Zaveri is also set aside. 4.1 In view of the above observations and settled proposition of law every piece of gold possessed by a person in India cannot be considered to be of smuggled nature and that the possessor of such gold has to discharge the onus under Section 123 of the Customs Act, 1962, However, it may be a requirement from a person in a Customs area who imported gold as baggage. In the instant case the foreign marked gold was not seized from a customs area or a person coming from an international border. Accordingly, it is held that in the present appeals, Revenue has failed to establish that seized gold was of smuggled nature. 5. Appellant Shri Rajendra Kumar Damani has brought on record two bills suggesting the purchase of the seized gold biscuits from M/s. Anand Sales Pvt. Ltd. On investigation by the Customs officer Shri Nand Kishore Modi of M/s. Anand Sales Pvt. Ltd. has confirmed the sale of 22 pcs. of gold biscuits to Shri R.K. Damani and also that these gold biscuits were procured by him from ABN AMRO BANK, Russel Street Branch, Kolkata. It is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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