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TMI Blog2019 (3) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... old after discharging their export obligation and therefore the confiscation of gold on the ground that the Appellant has not discharge their burden of showing legal acquisition of gold is not sustainable. The adjudicating authority has contended that the travelling voucher shows that the travelling was to be made by bus whereas the gold was carried in car. We found that it is not such an anomaly which could lead to otherwise inference of gold being smuggled can be drawn. The gold was exported at the NRC rate which was agreed at the time of export and even the gold was procured by the Appellant at same rate as NRC. The final invoice of M/s Diamond (India) Ltd and the invoice of appellant were matching in all details except the conversion rate which clearly shows that the seized gold was against the export invoice of Appellant. Confiscation of 1000.009 gms of gold bearing serial no. scratched, the ownership of which has been claimed by Shri Satish Mehta and seized from possession of Smt. Seema Mehta - Held that:- Shri Mukesh menon is employee of the Appellant and Smt. Seema Mehta is relative of Shri Nitin. Further all the purchase documents were produced before the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of seized gold and the skoda car in which some of the gold was carried is not correct - confiscation set aside - penalty also set aside - appeal allowed - decided in favor of appellant. - C/11565-11572/2018-DB - A/10561-10568 /2019 - Dated:- 25-3-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) For Appellant: Shri Hardik Modh (Advocate) For Respondent: Shri S.N. Gohil (AR) ORDER Per: Ramesh Nair Present appeals have been filed by M/s Dhanishtha Gold, Smt. Seema Mehta, Shri Harsh Choksi, Shri Kaushik Modi, Smt. Seemadevi Jain, Shri Mehul Modi, Shri Satish Mehta and Shri Prakash Duggar against Order-in-Original No. AHM CUSTM-000-COM-016-17-18 dated 09.03.2018 passed by Commissioner, Central Excise, Ahmedabad. 2. The brief facts of the case are that the officers intercepted Skoda car which was coming from Mumbai to Ahmedabad on 13.11.2016. The occupants of the car were Shri Nitin Bherumal Jain, Proprietor of M/s Dhanishtha Gold, Shri Mukesh Menon, Smt. Seemadevi Bherumal Jain his mother and Smt. Seema Satish Mehta his maternal aunt. Shri Nitin Jain revealed that they were carrying 2.5Kgs of Gold and ₹ 15 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hand over the said gold and currency to him at Ahmedabad; the two gold bars with serial no. AU57541 and AU 57542 were purchased by him from M/s Diamond India Ltd, Mumbai; that he could not explain about purchase document in respect of one kg gold bar with foreign marking the number of which was scratched, recovered from possession of Smt Seema Mehta and 505 gms of gold recovered from Smt. Seemadevi jain as the said gold belonged to his uncle Shri Satish Mehta. Statement of Shri Mukesh Menon was recorded wherein he stated that he is employee of M/s Dhanishtha Gold; the documents recovered from him were given by Shri Nitin Jain saying that they are necessary to be carried during the course of journey; that in spite of signing the bill no. 92 he did not carried any gold. Statement of Smt. Seema Bherulal Jain was obtained wherein she stated that the gold weighing 1505 Gms and ₹ 2 Lakhs of demonetised currency was given to him by his son Shri Nitin Jain who asked her to carry it secretly and she had no legitimate document. Statement of Smt. Seema Mehta was recorded wherein she stated that the gold weighing 1000 gms and ₹ 2 lakhs was given to him by Shri Nitin Jain to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted copy of Bill of Entry No. 7263874 dt. 28.10.2016, copy of packing list and Bill of lading under which M/s Diamond India Ltd had imported the said gold bars. Statement of Shri Prakash dugar was recorded who stated that Shri Satish Mehta had given him 1 Kg Gold Bar marked Valcambi Suisse (Serial No. AU57452) and on cut piece with direction to deliver to Shri mehul Modi/ Shri harsh Choksi of M/s PGP Joyeria, Ahmedabad (a venture of Prakash gold Palace) and directed him not to obtain any receipt against delivery and convey the message that the gold has to be sold in raw form and the balance quantity if remained to be used for making jewellery. The 3795.021 Gms and car were seized. M/s Diamond India Ltd on verification informed that they had issued invoice No. XGIKMUM16/183 dt. 08.11.2016 for gold bar Valcambi Suisse 995 of 1 kg Gold Bar (Serial No. AU57451) and XG1KMUM16/193 DT. 10.11.2016 for gold bar Valcambi Suisse 995 of 1 kg Gold Bar (Serial No. AU57452) to M/s Dhanishtha Gold. The show cause notice alleged that 1 kg gold bar (Serial No. AU57451) recovered from possession from Smt Seemadevi and 1 kg gold bar serial No. AU 57452 seized from possession of Shri PGP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one small cut gold piece weighing 2.400 gms and one very small cut piece 0.200 gms recovered from Smt. Seemadevi Jain, Shri Satish Mehta of M/s Prakash Gold had issued approval challan/ travelling voucher in respect of gold bars. However they could not produce any document showing legal import of said gold pieces accordingly it become prohibited and smuggled goods as defined under section 2 (39) and 2 (33) of the Customs act and liable for confiscation in terms of Section 111 (d) of the Customs Act. It was also proposed to confiscate the Skoda car in terms of Section 115 (2) of the Customs Act on the allegation that the same was used for carrying the foreign origin smuggled gold bars as well as gold bars/ biscuits/ cut pieces. It was also proposed to impose penalty on Shri Nitin Jain, proprietor of M/s Dhanishtha Gold, Shri Satish Mehta of M/s Prakash Gold Palace (P) Ltd, under section 112 (a) and under section 112 (b) of the Customs Act, 1962 on Smt. Seemadevi Jain, Partners of M/s PGP Joyeria, Shri Harsh Choksi, Shri Mehul Modi and Shri kaushik Modi. Penalty was also proposed on Shri Prakash Dugar, Smt Seema Mehta. The adjudicating authority vide impugned order dated 09.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax invoice bearing S1- 646 DT. 05.11.2016 issued by M/s Kaka Gold for purchase of said goods. Even though the said documents were produced at the time of investigation no enquiry was conducted at the end of seller of gold i.e. M/s Kaka Gold and therefore the burden shifts upon the department to prove otherwise. He relies upon judgments in case of Ashok Kumar Agarwal 2017 (348) ELT 555 (TRI), AIMR Jewels Pvt. Ltd. 2018 (390) ELT 150 (TRI), Nand Kishore Modi 2015 (325) ELT 781 (TRI). He submits that the minor difference of .009 in milligram cannot be ground to hold the goods other than sold by Ms/ Kaka Gold as there is every possibility of minor difference in weight on different machines. He relies upon judgment in case of Shrenik J. Kothari 2003 (161) ELT 1177 (TRI). As regard contention of the revenue that the approval challan was in name of Mr. Mukesh Menon whereas the gold was seized from Smt. Seema Mehta he submits that Shri Mukesh menon is employee of M/S PGP travelled by Skoda car with Smt. Seema Mehta and handed over the gold to her for safe custody. As all the four passengers travelled together, therefore the possession of gold from Smt Seema Mehta does not mean that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in he submits that the adjudicating authority has held that the purchase invoice of TBZ is not fool proof evidence and the travel voucher shows weigh of cut pieces as 505. 470 gms whereas the weighs of gold pieces seized was 505 gms and there is no co-relation between the documents. 7. He submits that the invoice of M/s TBZ correlates with small cut pieces. That M/s PGP Mumbai purchased four cuts pieces from TBZ vide invoice no. 19110964 dated 11.11.2016 addressed to M/s Alma Jewels which is brand of PGP. Out of total quantity of 2004.260 gms purchased from TBZ, Half cut gold piece, 2 small cut gold pieces and a very small cut piece gold pieces having a quantity of 505.470 gms were given to Shri Nitin Jain to deliver to PGP Ahmedabad for manufacturing jewellery. He submits that sale invoice of TBZ and travelling voucher No. 93 dated 12.11.2016 issued by M/s PGP Mumbai to Shri Nitin Jain to carry 1505.470 gms shows the bonafide. He submits that gold is not prohibited goods. Even if it is confiscated it ought to be released on payment of redemption fine as held in case of Karnail Singh Vs. CCE, Amritsar 2016 TIOL 1200 CESTAT CHD. He also relies upon judgment in case of Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional rate certificate to the Appellant for export of gold on 12.07.2016 pursuant to which the Appellant exported the goods and received proceeds in foreign convertible foreign exchange. The Appellant thereafter imported 2 kgs of Gold under the cover of invoice dated 08.11.2016 issued by nominated agency M/s Diamonds (India) Ltd. The circular dated 10.06.2016 nowhere specifies that the name of the job worker should appear in certificate issued by the Assistant Commissioner. The documents produced by the Appellant clearly show that the gold was legally procured by the Appellant. M/s Diamond India Ltd. has confirmed the goods to be sold by them. The revenue has not adduced any evidence nor it came during the entire investigation that the gold was procured from elsewhere i.e. other than M/s Diamond India Ltd. When once the nominated agency has certified and it is apparent from the records that the goods were procured legally, the burden lies upon the revenue to show that the gold was procured from elsewhere or to show that the documents/ records produced before them are false/ fabricated. It is also a fact that the Appellant had procured gold after discharging their export obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In case of confiscation of 1000.009 gms of gold bearing serial no. scratched, the ownership of which has been claimed by Shri Satish Mehta and seized from possession of Smt. Seema Mehta, the adjudicating authority has held that the physical weight was 1000.009 gms whereas the tax invoice No. S1-646 dated 05.11.2016 of M/s Kaka Gold produced by the Appellant is of 1000.00 gms. We find that a difference of .009 gms is not a big difference as the weight is bound to differ from machine to machine and some minor variation is normal. Further even though the approval challan was in the name of Shri Mukesh Menon and the gold was found to be with Smt. Seema Mehta, it does not make much difference as they were all travelling together. Shri Mukesh menon is employee of the Appellant and Smt. Seema Mehta is relative of Shri Nitin. Further all the purchase documents were produced before the investigating authority but the same were nor alleged to be false/ fabricated. No investigation was conducted at M/s Kaka Gold to show otherwise. Therefore, there is no reason to confiscate the said gold bar. Our views are also based upon judgments in case of Ashok Kumar Agarwal 2017 (348) ELT 555 (TRI), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the purchase invoice no. 19110964 dated 11.11 2016 issued by M/s TBZ is not fool proof evidence of legitimacy and the travel voucher shows the weight of gold pieces as 505.470 gms whereas the seized gold pieces 505 gms. We find that M/s Prakash Gold Palace, Mumbai had purchased four gold pieces from TBZ, Mumbai under invoice and the same was addressed to Alma Jewels the brand name of M/s PGP out of this a quantity of 505.470 has been given to Shri Nitin jain to deliver to PGP Ahmedabad for manufacture of jewellery. The travelling documents i.e. Travelling Voucher and transfer note were issued for such transfer which shows that the gold was legally acquired. There is no statement of any person that the gold is of smuggled nature and hence there is no reason to confiscate the same. 15. We thus hold that the confiscation of seized gold and the skoda car in which some of the gold was carried is not correct. We therefore set aside the confiscation of seized goods. For the same reason we hold that the penalty imposed upon all the Appellants is also not sustainable and the same is also set aside. We thus set aside the impugned order and allow the appeals with consequential reliefs, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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