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TMI Blog2018 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed in part. - Customs Appeal Nos. 76578-76582, 76857-76858 of 2016 - FINAL ORDER NO. FO/A/75198-75204/2018 - Dated:- 21-2-2018 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member ( Technical ) For the Petitioner : Sh. VM Doiphode, B.N. Chattopadhyay Shri Krishnarao Bhakte B.N. Dwedi, Adv For the Respondent : Sh. S.N. Mitra, DR ORDER PER JUSTICE (Dr) SATISH CHANDRA: All these appeals have been filed by the assessee-Appellants against the order-in-original No. 17/CUS/CC(P)/WB/2016 dated 18.08.2016 passed by the Commissioner of Customs (Prev), Kolkata. 2. The brief facts of the case are that, on 28.04.2014, on the basis of intelligence report, the DRI Officers have detained Shri Chandrasekhar Shriram Hadge, Shri Shrikant Bele and Shri Sunil Krishnarao Bhakte from Coach No. S-6 of a train which was going from Howrah to Nagpur at platform no. 21 of Howrah Railway Station. After preliminary interrogation, they were brought to the DRI Office and in the presence of independent witnesses, 14 gold bars were seized from their possession, as per the description given in the impugned order. The total weight of the gold bars was found as 13999.700 gm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice. The seized gold bar and cash is not liable to confiscation and his clients are not liable to any penalty. He submits that his client, Shri Purushottam Haribhau Kawale, is dealing in gold business i.e Kunal Jewellers since 2009 and in silver through his another firm, Sagar Jewellers since two decades. He also submits that as his client is engaged in the jewellery business, he is regularly buying the gold from M/s S.K. Gold, Mumbai, though serial number is not mentioned. Shri Purushottam Haribhau Kawale had sent his three employees to bring back 14 pieces of gold bars, which were sent for making the jewellery at Kolkata. He also submits that since Shri Pradip Gupta and Shri Guddu Jalan had increased the rate of commission, so there was a need to recall the gold. He also submits that a proper register is maintained for the period 01.01.2014 to 30.04.2014 which shows various sales of mixed ornaments made to customers. Further, he submitted that sometimes old gold ornaments are also made and cut into pieces. Since different customers want different kind of purity, his client got the old jewellery melted. Kolkata being hub of jewellery making and about 30% of jewellery in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kawale and three carriers were not cross-examined as no opportunity was given. He submits that the impugned order not only non-speaking, but also suffers from denial of natural justice. Lastly, he relied upon the ratio laid down in the following cases : (i) Oryx Fisheries Pvt. Ltd. vs UOI, 2011 (266) ELT 422 (SC); (ii) UOI vs Rajendra Bajaj, 2010 (253) ELT 165 (Bom.); (iii) Jha Shipping Agency vs UOI, 2011 (264) ELT 321 (Cal); (iv) Lakshman Exports Ltd. vs CCE, 2002 (143) ELT 21 (SC); (v) UOI vs GTC Industries Ltd., 2003 (153) ELT 244 (SC); (vi) CCE C vs Chandubhau Shiroya, 2009 (234) ELT 24 (Guj.); (vii) Stanlek Engg. Pvt. Ltd. vs CCE, Mumbai-II, 2008 (229) ELT 61 (Bom.); (viii) Micro Super Cables Pvt. Ltd. vs CCE, 2013 (298) ELT 161 (Del.); and (ix) Standard Radiators Pvt. Ltd. vs CCE, 2002 (143) ELT 24 (SC). 7. Another counsel, Shri B.N. Dwedi, learned counsel for the three carriers who are the employees of Kunal Jewellers, submits that gold was carrying by them from Kolkata to Nagpur which was brought earlier from Nagpur. He submits that his clients are merely employees who were working at the instance of their master, Shri Puru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bar was defaced, so the number and mark was no legible. During the course of hearing, none of the parties was able to deliver the fate of the High Court Writ Petition and contempt proceedings pending in Kolkata High Court. 12. Shri Purushottam Haribhau Kawale has accepted the ownership of the seized gold. His three employees are merely the carriers. These three persons know very well that it is unaccounted/smuggled gold and they were carrying the same in illegal manner. So, the penalty has rightly been imposed upon them. Shri Purushottam Haribhau Kawale has claimed the ownership of the gold, but unable to explain the source from where it was purchased. The gold purchased from M/s S.K. Gold, Mumbai, was not matching. Old gold, which was claimed to be melted, was also not matching with the quality of this. The old gold cannot be converted into the bar of foreign marking which was defaced. So, we find no reason to interfere with the finding regarding confiscation of the gold as the same was considered as smuggled one. 13. However, other persons, Shri Pradip Gupta and Shri Guddu Jalan @ Anurag Jalan did not cooperate, during the course of investigation, so the penalty imposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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