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TMI Blog2017 (7) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the Final Order No.70267/2017 dated 20/01/2017 and remanded the matter back to this Tribunal with direction for afresh decision on merits by Division Bench of this Tribunal. In compliance to the said directions these proceedings were carried out. 2. The brief facts of the case are that the appellant M/s AIMR Jewels Pvt. Ltd. 200, Agra are having two establishments one at Kucha Mahaganj, Chandni Chowk, Delhi & one more at Kinari Bazar, Agra. Shri Swadeh Verma is the Director of AIMR Jewels Pvt. Ltd. Appellants were engaged in the trade of Gold & Silver in Bullion form and Jewellery of Gold & Silver. On 11/07/2014, 12 Kg. of Gold was seized by Commercial Tax Department of Uttar Pradesh. Subsequently, Superintendent Customs (Pre.) Division, Bareily detained the said Gold. The said Gold was being shifted through a vehicle bearing No. UP-25AV/2924 from Chandni Chowk, New Delhi to Agra. The said vehicle was transporting the said stock of gold from Chandni Chowk, New Delhi establishment to Agra establishment under a Challan No. 14-15/1 dated 11/07/2014 for the transshipment/transport of the said 12 Kg of Gold. The appellant handed over one road permit or declaration in form XXXVIII, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice dated 09/01/2015. 3. As per the said SCN, in the statement recorded under Section 108 of Shri Swadesh Verma director of AIMR Jewels wherein he stated that they deal and/or were in the business of gold and silver jewellery and bullion and were having the offices and shops at Delhi and Agra. He stated that they were in this business since May, 2011 and had taken franchise of Reliance Telecommunications also that the vehicle No. UP-25 AV 2924 belonged to his firm AIMR Jewels Pvt. Ltd and was bought from Mrs Ruchi Rastogi wife of Shri Vineet Rastogi of Bareilly under deed of sale that they had got made safety boxes beneath the front seat of the car for safe transport of jewellery and bullion. He also deposed that he knew Mr and Mrs Rastogi for last 1.5 years and they were also in the business of jewellery and were in regular contact with them. As Mrs Ruchi Rastogi wished to sell her car and he needed a car for his business, so he had bought the car from her under sell deed for Rs. 04 Lakhs. As the said car was purchased under loan by Mrs Ruchi Rastogi, hence the transfer of name could not take place immediately. He further stated that on 11/07/2014 he sent his driver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded statement on 01/08/2014 under Section 108 wherein he stated that they were registered dealers in gold with the Commercial/Sales Tax Department and they had trade relations with Bilasa & Sons Pvt. Ltd. that Supreme Gold sold 16 Kg. of gold bars (16 bars) vide their sale invoice dated 07th July, 2014 to M/s Bilasa & Sons and payment for this was received through bank via RTGS that Supreme Gold had purchased gold bars from the Handicraft and Handloom Export Corporation of India Ltd, Delhi (HHEC for short). The 16 gold bars of one Kg. each which was sold to M/s Bilasa & Sons was a part of consignment of 39 Kg. of gold bars received from the Handicraft and Handloom Export Corporation of India Ltd, Delhi. Further, it was deposed that the payment was made through bank transfer and also submitted a self attested copy of their bank statement/letter. Further, Mr. Pawan Kumar Aggarwal, also filed a statement dated 07th July, 2014 issued by M/s Brinks India Pvt. Ltd, Delhi for delivery of 17 Kg. and 22 Kg. of gold to them on behalf of HHEC Ltd. On further enquiry from Branch Manager, Ratnaker Bank Ltd., Delhi to produce the certified copy of the bank s statement of Supreme Gold Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh Verma did not appear in response to summons issued dated 01/09/2014, 09/09/2014 and 18th September, 14 to tender his statement under Section 108 and moreover an incomplete statement, was submitted on 15th December, 2014 by Shri Anil Sharma who appeared in response to summons dated 05th December, 2014. Hence, it appeared to Revenue that the seized 12 Kg. gold was imported illegally into India and was therefore liable to confiscation under Section 111(d), (l) and (m) of the Customs Act read with Section 123 of the Act, Section 5 and 11(i) of the Foreign Trade (Development & Regulation) Act, 1992. Further, the vehicle Toyota Etios liva car No.UP-25 AV 2429 used as a medium of transport for the above said seized 12 Kg. Gold Bars, in special cavity built in the car was also liable to confiscation under Section 115(1) (a) and 115(2) of the Customs Act, 1962. 4. The SCN was adjudicated on contest, absolutely confiscating gold and confirming the confiscation of the car and also imposing penalties and redemption fine on car. The learned Commissioner have held that the chain of transaction did not establish, that is from the importer of the said gold namely HHEC Ltd to the appellants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he money for the same was also paid through the banking channel by RTGS. These facts have been stated in the said Show Cause Notice. Further, the transactions were tracked back through M/s Bilasa & Sons Pvt. Ltd., Delhi who had confirmed that they had purchased 16 Kg of Gold Bars through invoice dated 07/07/2014 from Supreme Gold & out of the same, 12 Kg. Gold was sold to appellant. M/s Supreme Gold Pvt. Ltd., also informed that they had purchased the said Gold Bars from M/s Handicraft & Handlooms Exports Corporation of India Ltd., New Delhi (Known as H.H.E.C. of India). Further, M/s H.H.E.C. of India & BRINK s India Pvt. Ltd. informed that M/s H.H.E.C. of India had purchased 300Kgs. of Gold Bars of 1Kg. each under Air Way Bill No. 176-87327634 dated 24/06/2014 which was cleared from Customs under Warehouse Bill of Entry No. 5913058 dated 25/06/2014. The ld. Counsel for the appellant has submitted that they have established the entire trail of lawful import of said gold and payment of customs duty and possession of the said gold through various traders through the lawful issue of invoices and the money for the same was also paid through the banking channel such as RTGS. There was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods are not of smuggled nature was on the person from whose possession the goods were seized or the person who claims the ownership of the same. Though the appellant has shown that he purchased the said gold from M/s Bilasa & Sons Pvt. Ltd., Delhi vide tax invoice dated 07/07/2014 and another dated 11/07/2014 and M/s Bilasa & Sons Pvt. Ltd., Delhi have proved that they had purchased said Gold from M/s Supreme Gold, Delhi vide invoice dated 07/07/2014 and further that Supreme Gold, Delhi have proved that they had purchased said gold from M/s H.H.E.C. of India who had imported and got said gold cleared through Bill of Entry No. 5913058 dated 25/06/2014 in the said Show Cause Notice Revenue is not accepting that the owner of Gold has discharged his burden to proved that the goods seized were not of smuggled nature only on the basis of a so-called certificated dated 04/08/2014 stated to have been issued by Suppliers M/s INTL Commodities DMCC wherein as stated in the said Show Cause Notice the brand name mention by M/s INTL Commodities DMCC was AL ETIHAD whereas the good under seizure are having brand name as 'VALCAMBI SUSSIE'. We find that the contention of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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