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TMI Blog2016 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the absence of any such investigation claimant Shri Swadesh Ch.Paul has discharged his burden that 7(seven) gold bars seized from Shri Babul Roy belonged to him and are not of foreign origin. The only evidence in the form of first statement of Shri Babul Roy, which was also subsequently retracted, cannot be made as the sole basis to hold that the seized gold bars are of foreign origin and smuggled. - Decided in favour of appellant with consequential relief - Appeal No. CA-75230, 75231/14 - Order No.FO/A/75304-75305/2016 - Dated:- 18-4-2016 - Shri H.K.Thakur, Member(Technical) For the Petitioner : Smt.Chandreyi Alam, Advocate For the Respondent : Shri S.Nath, AC(AR) ORDER PER SHRI H.K.THAKUR. These Appeals have been filed by the Appellants against Order-in-Appeal No.34/CUS(A)/GHY/13 dated 13.12.2013 passed by the Commissioner(Appeals) of Customs Central Excise, Guwahati. 2. Smt.Chandreyi Alam (Advocate) appearing on behalf of the Appellants argued that on the basis of a specific information the officers of Customs, Agartala apprehended Shri Babul Roy at Mathchowmuhani on Assam Agartala Road on 12.03.2004 and with the help of metal detectors obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without issue of any summons to him. It appears that the proceeding is also before the Judicial Magistrate of Agartala and the fate of the said case is also not known to the record. When the Appellant, Shri Swadesh Chandra Paul was calling for a Show-cause Notice as to why he should not be denied the ownership of gold (vide para 22 of the Order of Adjudication), Department did not appear to have given him a fair opportunity with appropriate charge and the basis, if any, for denial. There was neither any nexus nor any collusion between the two Appellants, the fact of which was also brought to record. No material shows that Shri Babul Roy was under any sorts of influence or pressure by Shri Swadesh Roy for retraction of the confessional statement on the very day of detection of gold from him. Further, when there was an allegation by letter dated 04.10.04 that Shri Babul Roy was succumbed to pressure for extraction of statement also remains uncontroverted. Therefore, doubt is not ruled out whether the statement recorded from Shri Babul Roy was by any unlawful means or not. If that is so, the statement, if any recorded under Section 108, has to meet the test of law. The entire issue go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no other documentary evidence was produced by the claimant Shri Swadesh Ch.Paul after 04.10.2004. Ld.AR relied upon the case law of Kewal Krishan v. State of Punjab [1993 (67) ELT 17(SC)] to argue that in the case of a seizure made under reasonable belief of goods being smuggled then the onus lies on the person from whose custody the gold is seized to establish that seized goods are not smuggled. That none of the Appellants have discharged the onus that gold of foreign origin was not smuggled into the country. 4. Heard both sides and perused the case records. A seizure of 7(seven) gold bars was made by the officers of Customs on 12.03.2004 which were concealed in the rectum of Appellant Shri Babul Roy. In his first statement dated 12.03.2004 Shri Babul Roy stated that the seized gold bars were of Bangladesh origin. No foreign markings were found on the seized gold bars. It is also observed that by a subsequent statement on the date of seizure Shri Babul Roy retracted his first statement and stated that the seized goods belonged to Shri Swadesh Ch.Paul. Departmental investigation tried to locate the whereabouts of Shri Swadesh Ch.Paul, but he could not be traced. A Show Caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he First Appellate Authority in the first round of litigation. The findings given by the Adjudicating authority that there is nothing he can rely upon to agree with the contention of the Appellant that he is indeed the owner of the seized gold. The Order-in-Appeal dated 08.09.2005 passed by the First Appellate Authority was agitated by the Appellant before this Bench when the case was remanded for de novo adjudication as per Order dated 26.09.2007. Once an order passed by the First Appellate Authority has been set aside then the same cannot be considered to be the final word to be relied upon. Though the claim by the Appellant Shri Swadesh Ch. Paul was made after the issue of first Show Cause Notice dated 03.09.2004, but there was definitely a scope to extend the investigation to Nantu Banik, Pinky Jewellary, Municipal Road before issuing second Show Cause Notice dated 10.11.2009. A verification of the documents furnished by Shri Swadesh Ch.Paul would have made the facts very clear whether the seized gold bars were acquired indigenously or not. From the facts available on record no foreign markings were existing on the gold bars seized and the first statement of Shri Babul Roy was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no document of purchase of seized gold biscuits have been produced on the date of the panchnama or recording of of the first statement. But looking to the fact; that Shri R.K. Damani was not arrested when Shri Mahendra Bahadur did implicate Shri R.K. Damani as his employer; it has to be held that statements recorded on 14-2-2001 were not the correct representation of the facts. This is also fortified by the fact that recovery of gold biscuits was conflictingly shown to be from the pocket of Shri Mahendra Bahadur and as well as from the waste paper box. Under the existing factual matrix, appellant Shri R.K. Damani is able to discharge his burden of licit acquisition of gold biscuits by furnishing the purchase bills from the M/s. Anand Sales Pvt. Ltd. The confiscation of 22 pcs. of gold biscuits is required to be set aside and the same are required to be handed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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