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TMI Blog2017 (10) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... boratories. It is undisputed that the Customs Authorities had recovered various documents from the premises of M/s Chamunda Enterprises when they visited their premises. In the absence of any clear-cut opinion of the Central Forensic Science Laboratory as to the genuineness of the document and also due to non-production of duplicate copy of the invoices, the said opinion being inconclusive, needs to be considered as an evidence only to the effect that it is not proved beyond doubt that document produced by the appellant as a copy of the duplicate invoice of M/s. Chamunda Enterprises. In my view, this evidence not being conclusive, other corroborative evidences needs to be considered to come to any conclusion as to whether the goods are smuggled or otherwise. Now coming to the disregarding of evidences by M/s. Chamunda Enterprises, the first appellate authority has totally misconstrued these evidences. It is seen from the record that after the affidavit of Shri Ratan Singh Rathod, Proprietor of M/s. Chamunda Enterprises was produced before the authorities, the countering parts of the Customs Preventive Authorities, Mumbai visited the premises of M/s. Chamunda Enterprises on 26.9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was taken to the Special Customs Preventive Unit Office, Kasaragod and on search of his person in the presence of independent witness which resulted in the recovery of 37 gold biscuits of foreign origin, totally weighing 4310.05 gms and valued at ₹ 18,96,628/- (M.V.). After due process of investigation the case was adjudicated by the Joint Commissioner of Customs (Preventive) vide Order-in-Original No.Cus 5/2005 dated 28.2.2005. The Joint Commissioner ordered absolute confiscation of 37 gold biscuits and imposed penalties to on Shri P. Rasheed, Shri T. V. Abdul Kader. Aggrieved by the Order-in-Original, the appellant filed an appeal before the Commissioner of Customs (Appeals) the same was disposed of by the Commissioner (Appeal) vide Order No.230/2006 dated 17.10.2006, without going into the merits, as the appellant had failed to comply with the directions of pre-deposit. Aggrieved by the said Order-in-original, the appellant filed an appeal before Hon ble CESTAT, Bangalore. The Hon ble CESTAT vide F.O. No.725 to 726/2010 dated 20.4.2010 remanded the case back to the Commissioner (Appeals) to decide the case on merits. The Commissioner (Appeals) disposed of the appeal file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da Enterprises and submits that such Panchanama was done so after the Proprietor of M/s. Chamunda Enterprises filed an affidavit on 15.9.2001 regarding the sale of such goods to appellant Shri Abdul Khadeer. He would submit that despite such a raid by the authorities in the premises of M/s. Chamunda Enterprises nothing incriminating was found and that they had withheld various documents from M/s. Chamunda Enterprises which included the purchase bills and sales bills. It is his submission that despite the proprietor of M/s. Chamunda Enterprises being present at the time of drawing of Panchanama, Revenue authorities did not record any statements of the said Proprietor to bring on record that the gold which was procured by appellant Shri Abdul Khader was in fact a smuggled one. It is his further submission that the intermediary Shri Mahendra Rajawat who organized for the sale of the gold had clearly stated in his statement that he had in fact brokered the sale between Shri Abdul Khader and M/s. Chamunda Enterprises. It is also on record that the said Shri Mahendra Rajwat did ask Shri Abdul Khader to come on earlier date, on which date the delivery of gold biscuits could not be made as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from P. Rasheed on 17.8.2001 is to be held as a smuggled goods or otherwise; and whether the ownership of the said gold biscuits as claimed by Shri Abdul Khader is correct or otherwise; and whether the appellant Shri Abdul Khader has proved beyond doubt that the biscuits that were procured were from legitimate source or otherwise. 6.1 This is the second round of litigation before the Tribunal. In the first round of litigation, the Bench had remanded the matter back to the lower authorities to reconsider the issue afresh in the light of the claim of Shri Abdul Khader that he had procured these gold biscuits from M/s. Chamunda Enterprises and produced a photocopy of the bill before the lower authorities on the next day as before the Tribunal. On such de novo adjudication, the adjudicating authority again held that the gold biscuits which were recovered from Shri P. Rasheed are liable for absolute confiscation and both the appellants before the Tribunal are to be penalized under Section 112 of the Customs Act, 1962. On an appeal, the first appellate authority also held against the appellants by recording the following: 8. I have carefully considered the impugned order-in-orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, refrain from interfering on it. 6.2 It can be seen from the above reproduced findings that the entire issue revolves around the genuineness of the bills which was produced by Shri Abdul Khader on the very next day of the seizure of the gold and also whether the appellant has been able to justify the legitimate possession of this gold biscuits (though having foreign markings) having been procured legally. As regards the issue of the legitimacy to the bill or genuineness of the bill produced by the appellant has to justify his claim that they had procured it from M/s. Chamunda Enterprises. This bench in the first round of litigation in para 4 of the Order No.724-726/2010 dated 20.4.2010 directed as under: 4. The learned Departmental Representative on behalf of the Revenue could not produce any decision to show as to in similar circumstances, no expert opinion would be required for the adjudicating authority or the Tribunal come to the conclusion. Another reason as to why we would like to this documentary evidence subject to expert opinion is that the whole case of the department stands on this document. As pointed out by the learned Sr. Counsel, the law does not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the copy of the bill produced by the appellant Shri Abdul Khader before the authorities claiming to have been purchased from M/s. Chamunda Enterprises seems to be inconclusive in view of the fact that the authorities had not sent the duplicate copy of the bill to the Forensic Laboratories. It is undisputed that the Customs Authorities had recovered various documents from the premises of M/s Chamunda Enterprises when they visited their premises. In the absence of any clear-cut opinion of the Central Forensic Science Laboratory as to the genuineness of the document and also due to non-production of duplicate copy of the invoices, the said opinion being inconclusive, needs to be considered as an evidence only to the effect that it is not proved beyond doubt that document produced by the appellant as a copy of the duplicate invoice of M/s. Chamunda Enterprises. In my view, this evidence not being conclusive, other corroborative evidences needs to be considered to come to any conclusion as to whether the goods are smuggled or otherwise. 6.6 It is seen from the records that undisputedly Shri P. Rasheed who was intercepted with biscuits alleged to be smuggled on the day of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get the biscuits from Mumbai, it has to be accepted that Shri P. Rasheed was stating the truth before the authorities. It is also noticed from the statement of Shri Abdul Khader that he had categorically stated that he had procured these gold biscuits from M/s. Chamunda Enterprises and produced a photocopy of the bill. The said photocopy of the bill indicated the address of M/s. Chamunda Enterprises, which is recorded as No.45, Tel Galli, 1st Floor, Office No.1, Vithal Wadi, Mumbai 400 003. It is also noticed that Shri Abdul Khader had produced an affidavit dated 15.9.2001 of Shri Ratan Singh Rathod, Proprietor of M/s. Chamunda Enterprises sworn before Notary Public stating clearly that he had sold 37 Nos. of foreign marked gold biscuits to Shri Abdul Khader and that sale was effected by one Shri Mahendra Rajawat and who is my relative and our regular broker; and the gold biscuits were handed over to one Shri P. Rasheed on behalf of Shri Abdul Khader. This affidavit was produced by Shri Abdul Khader before the investigating authorities and this affidavit is noted in the show-cause notice in paragraph No.44. All these corroborative evidences would indicate that Shri Abdul Khader ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WB in Final Order No. A/75482-75483/2015 dated 21.8.2015 wherein the ratio is confirmed in paragraphs 4 and 5 of the said order of the Tribunal. 6.9 In yet another angle of the entire case, it has to be seen that M/s. Chamunda Enterprises filed affidavit on 15.9.2001 which was taken cognizance and no further investigation was carried out till 26.9.2001 and subsequently on 26.9.2001, there was raid on the seller i.e., M/s. Chamunda Enterprises wherein during the Panchanama, they had given all his books to the authorities. After recovering such documents from M/s. Chamunda Enterprises, the Customs Authorities has not carried out any further investigation on the legitimacy of procurement of gold by M/s. Chamunda Enterprises. I find that in view of the foregoing, the case of the Revenue that this gold biscuits of smuggled nature fails miserably. 6.10 Further, I find that provisions of Section 123 of the Customs Act, would apply to in this case. Though there is an exception carried in said Section in respect of the gold, I find that Shri P. Rasheed, the person who was intercepted and from whom the gold was recovered; Shri Abdul Khader the person who claimed the ownership of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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