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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 ..... i Nitin Jain revealed that they were carrying 2.5Kgs of Gold and Rs. 15 lakhs of demonetized notes. That the said gold was to handed over to Shri Utsav Modi of M/s PGP Joyeria a Jewellery shop located in Ahmedabad and he was on the way to meet him at Vishala Circle. The officers waited for the persons who were to take delivery and located a car and its occupants Shri Utsav Modi and Kush Modi who had come to receive Shri Nitin Jain. The cars and persons were brought to the DRI office and search of the car and occupant was conducted. The search resulted into recovery of Rs. 2 lakhs of demonetised notes from Smt. Seemadevi jain and five pieces of gold weighing 1505 Gms stitched in her Petticoat; During search of Smt. Seema Jain she was found possessing Rs. 2 lakhs of demontised notes. Also one piece of Valcambi - Suisse 995.01 Kg. Gold Bar weighing 1000.009 gms was found from the pocket stitched to her petticoat. Search at PGP Joyeria resulted into seizure of one gold bar marked Valcambi Suissee bearing Sr. No. AU57452 weighing 1000.009 grams, one gold bar Valcambi Suissee bearing Sr. No. AG 190942 weighing 100.001 grams and one cut piece of Gold which was confirmed to have been cut f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rs. 2 lakhs was given to him by Shri Nitin Jain to be carried. She had no idea of purpose for which the gold was being carried as neither her husband Shri Satish Mehta nor his nephew Shri Nitin Jain had told her the purpose. Shri Utsav Modi in his statement stated that his father had instructed him and his brother Shri Kush to go to Vasna Circle and ask Shri Nitin Jain to talk to his father. Statement of Shri Harsh Choksi was recorded wherein he stated that Shri Mehul Sureshbhai Modi, kaushik Kanubhai Modi and he were the partners in M/s Hem Jadtar and employees of M/s PGP Joyeria (franchisee of PGP, Chennai); that on 13.11.2016 their Partner Shri Mehul Modi received 1 kg foreign gold with 'Valcambi Suisse' bearing Sr. No. AU57452 with 995.00 purity, one gold bar weighing 100 gms marked 'Valcambi Suisse' bearing Sr. No. AG 190942 and one cut piece of gold weighing 190 gms from Prakashbhai of Mumbai and is brother in law of of Shri Satishbhai of M/s PGP Pvt. Ltd.; that Shri Prakash bhai had conveyed message of Shri Satish bhai to Shri mehul Modi that the said gold was to dispose off in the market and if any remaining should be used in making gold jewellery. Shri Satishbhai in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r serial No. AU 57452 seized from possession of Shri PGP Joyeria both ownership has been claimed by Shri Nitin Jain, proprietor of M/s Dhanishtha Gold were imported duty free under Notification no. 57/2000 - Cus for export purpose. However the same was carried to Ahmedabad for selling out and make huge profit during demonetisation which was in contravention of Notification no. 57/2000 - Cus dt. 08.05.2000, Circular no. 27/2016 -Cus dt. 10.06.2016 and FTP 2015 - 20 which allowed duty free import only for export purpose. Accordingly the said gold bar became "prohibited goods" as defined in section 2 (33) and 'smuggled goods' as defined under section 2 (39) of the Customs Act, 1962. Therefore the same is liable for confiscation under section 111 (d) and section 111 (o) of the Customs Act, 1962. 4. It was also contended that M/s Diamond India Ltd. in response to query informed that in respect of import Invoice No. XGIKMUM16/183 dated 08.11.2016 and XG1KMUM16/193 dated 10.11.2016 the export obligation have been fulfilled by the exporter and also submitted the Bank realisation certificate in that respect. M/s Diamond India Ltd. also forwarded viz. Shipping bill, commercial invoice and B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority vide impugned order dated 09.03.2018 ordered for absolute confiscation of seized gold and Skoda Car in which some quantity of gold was carried. Penalty upon all the Appellants was also imposed, hence the present appeals. 5. Ld. Counsel Shri Hardik Modh submits that the 2 kg Gold bars bearing no. AU57451 and AU 57452 were belonging to M/s Dhanishta Gold. The same were procured from M/s Diamonds India Ltd. a nominated agency for booking of precious metal, against export of gold jewellery made earlier by them. The export of jewellery was made on notional rate basis provided by bank under replenishment. M/s Diamond India Ltd issued purchase certificate bearing a serial number to them. The legally acquired gold was legally transferred to Ahmedabad for manufacture of jewellery at the time of their seizure. He relies upon the documents produced before the investigating officers and adjudicating authority in the form of import invoices, shipping bills, travelling voucher, Notional rate certificate, sale invoice issued by Appellant M/s Dhansihta Gold for export of jewellery, Delivery challan of custodian of import goods, transfer voucher of M/s Prakash Gold for transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold from Smt Seema Mehta does not mean that the approval challan was wrongly made. As regard 100.001 gms of Gold bar Sl. No. AG 190942 seized from PGP Joyeria, Ahmedabad, the ld. Counsel submits that the said quantity was purchased from Raksha Bullion and they produced evidence to this effect. However the same was not accepted on the ground that there was no correlation between the goods and invoice, the invoice does not have serial number, the invoice was issued on 20.10.2016 whereas the gold was seized on 13.11.2016 and it is not possible for jeweller to hold gold for so long period and thus the obligation of appellant under section 123 is not discharged,. 6. He submits that M/s PGP Mumbai has purchased 500 gms of gold bar from Raksha Bullion, Mumbai under invoice No. 1995 dt. 20.10.2016. The part quantity was handed over to Shri Prakash Duggar under transfer voucher dated 12.11.20916 for giving delivery to PGP Ahmedabad for manufacture of antique jewellery. There is no requirement under the law to mention gold bar serial number. He relies upon judgment in case of Ashok Kumar Agarwal 2017 (348) ELT 555 in this context. That holding of gold for more than 20 days does not mean t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHD. He also relies upon judgment in case of Rajaram Bohra Vs. UOI 2015 (322) ELT 337 (Cal.). 8. Shri S.N. Gohil Ld. Superintendent (AR) appearing for the revenue supports the findings of the impugned order. He submits that since the seized gold cannot be identified with any legitimate purchases, hence the same has been rightly confiscated being of prohibited and smuggled nature. 9. Heard both the sides and perused the records. As regard seizure of two gold bars i.e Valcambi - Suisse of 995 purity having Serial No. AU 57452 and Serial No. AG190942 we find that the Appellant had produced all the purchase related documents before the investigating officer as well as to the adjudicating authority. The documents included Notional rate certificate No. DIL/PM/NRC.38 dt. 12.07.2016 issued by M/s Diamond India Ltd at the time of export of goods by M/s Dhanishta, invoice No. 12.07.2016 issued by Appellant for export of goods containing details of said NRC. Final invoice dated 12.07.2016 containing details of invoice reference no. XGIKMUM16183 FDT. 8.11.2016 and XGIKMUM16/193 dated 10.11.2016. Invoice XGIKMUM16183 FDT. 8.11.2016 and XGIKMUM16/193 dated 10.11.2016 of M/s Diamond India Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 10. 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. The revenue has relied upon the statement of Shri Nitin Jain and others that they brought the gold in Ahmedabad to sell on a higher rate. However we find that in first statement of Shri Nitin Jain on 13/14.11.2016 nothing inculpatory is coming out and he has clearly stated that the gold was given to M/s Prakash Gold P. Ltd, Mumbai (PGP, Mumbai) for convert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Agarwal 2017 (348) ELT 555 (TRI), AIMR Jewels Pvt. Ltd. 2018 (390) ELT 150 (TRI), Nand Kishore Modi 2015 (325) ELT 781 (TRI). 12. In respect of 100.001 gms of gold serial no. AG 190942 owned by Appellant Shri Satish Mehta and seized from M/s PGP Joyeria, we find that the adjudicating authority has held that there was no correlation between the invoice of M/s Raksha Bullion the supplier of goods and the seized gold bar and that the invoice does not mention the serial number of gold bar. That the invoice was issued by M/s Raksha Bullion on 20.10.2016 whereas the gold was seized on 13.11.2016 and it would not be possible for jeweller to hold goods for so long period. We find that the above instance cannot be reason to hold that the goods are of smuggled nature. The Appellant has produced the invoice No. 1995 dated 20.10.2016 of M/S Raksha Bullion. Out of this part quantity was handed over to Shri Prakash Duggar under Transfer voucher dated 12.11.2016 for giving delivery to M/s PGP, Ahmedabad for manufacture of jewellery. There is no contrary evidence to this fact. Also the one month gap between the purchase of gold and sending it for manufacture of jewellery cannot be held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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