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TMI Blog2019 (8) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents were produced before the Original Adjudicating Authority as evidence of legal possession of gold by the appellants. The Original Adjudicating Authority has rejected the documents only for the reason that they were not produced before the investigating authorities - We are constrained to observe that the Original Adjudicating Authority has not understood the process of adjudication. Since it has not been established that the documents issued by M/s Saakshi Securities ltd. for handing over 8 Kgs gold to Shri Vinod Kumar Verma are not fake and also it has not been established that said gold was brought into India through off-route, we do not find any merit in upholding the impugned order. Appeal allowed - decided in favor of appellant. - Customs Appeal Nos.70264 And 70265 of 2017-[DB] - Final Order Nos. 71565-71566/2019 - Dated:- 20-8-2019 - SMT. ARCHANA WADHWA, MEMBER (JUDICIAL) And MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri A.P. Mathur, Advocate for the Appellant Shri Gyanendra Kumar Tripathi, Authorised Representative for the Respondent ORDER PER: ANIL G. SHAKKARWAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for absolute confiscation. Therefore, a show cause notice dated 18.05.2016 was issued to five persons including the present two appellants and including the persons who were found in the vehicle, when it was intercepted. Through the said show cause notice there was a proposal to confiscate the seized 8 Kgs gold under Section 111 (b) (e) of Customs Act 1962, confiscation of seized vehicle under Section 115 of Customs Act, 1962. Further, there were proposals to impose penalties under Section 112 (a) (b) of Customs Act, 1962. Shri Manoj Kumar Verma vide his letter dated 18.07.2016 replied to the show cause notice. Shri Rinku Verma, Shri Saharyar Shri Raju Pandey submitted their reply dated 02.12.2016 to show cause notice. Personal hearing was granted by Original Adjudicating Authority. The Original Adjudicating Authority through the impugned Order-in-Original adjudicated the matter and ordered as follows:- 44.1 I order confiscation of the seized Third Country Origin/Foreign Origin Gold Bars weighing 8 kg valued at ₹ 2,07,20,000/- under Section 111 (b) (e) of the Customs Act, 1962; 44.2 I order confiscation of the seized vehicle Mahi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma had obtained the said gold from M/s Saakshi Securities Ltd. by bidding in the auction and the documents related to bidding and lawful possession of said gold from M/s Saakshi Securities Ltd. by Shri Vinod Kumar Verma were brought to the notice of Original Adjudicating Authority. The Original Adjudicating Authority in para no.35 of Order-in-Original has held that since the said documents were not produced before the investigating agency, therefore, he does not accept the same as evidence. The learned Counsel has further submitted that the learned Original Adjudicating Authority has nowhere observed that the documents produced were forged. He has submitted that the Original Adjudicating Authority has decided against the appellants on the basis of statements recorded under Section 108 of Customs Act, 1962, however, he has not taken into consideration that the said statements were retracted immediately after the release of noticees from the control of Departmental Officers. He has further submitted that in para no.15 of the show cause notice there has been mention of inquiry being taken up with Embassy of India at Kathmandu, Nepal. However, the report received from the Embassy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh was arranged and paid in cash to Shri Varun Kumar Chaturvedi. On the basis of Auction invoice Dated 16.11.15 M/s Saakshi Securities Limited agreed to deliver the Gold bars on 20.11.15. Since the Gold weighing 8 Kg involved a value of more than a crore of rupees. So Shri Verma decided to come to Lucknow to take the delivery of Gold for transporting to Gorakhpur for disposal so that the remainder value of the transactions could be paid to M/s Saakshi Securities Limited. When after taking delivery of Gold the party was on way back to Gorakhpur, he was apprehended by the Officers of DRI, Lucknow, who recovered the Gold from the dash board of the vehicle and seized vide panchnama dated 21.11.15. The Party and his colleagues Raju Pandey, Saharyar and Rinku Verma driver of the Vehicle were taken to the DRI Office and compelled to tender statement as dictated. All of them complied with the directions of the Officer concerned and tendered their statement as required because they were maltreated and had no courage to behave independently. All of them were arrested and remanded to judicial custody. d. The allegations of the Show Cause Notice are not true. The Gold bar was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurities Limited Ahmedabad having their corporate office at 11, Janki Plaza, Sector G , Jankipuram, Lucknow 16.11.2015. When he was on way back to Gorakhpur with the Noticees he was intercepted by the DRI Officers of Lucknow in Lucknow, who recovered Gold bars from the dash board of the vehicle and took all of them to their Office where the Gold bars were seized and statement was extracted from the Noticees on dictation. No Gold bar was recovered from the possession of any of them as mentioned in the Panchnama dated 21.11.2015. b. That the Noticees were under custody and tortured and so they admitted whatever was dictated to them otherwise the extracted Statements are fictitious without any iota of truth. The story of smuggling of Gold Bars from Nepal into India and their transport to Delhi for disposal is mere fiction and fabrication of the Seizing Officers. c. Since the Noticees were employee of Shri Verma and so they accompanied him to ensure safety and security of his employer during transportation of the precious metal from Lucknow to Gorakhpur. As such they deny the concocted story of smuggling of the goods seized. d. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within India. Neither the investigating agency produced any evidence on inquiry from Embassy of India in Kathmandu, Nepal nor they have produced any evidence of the so called off-route taken by the appellant to allegedly smuggle gold into India from Nepal. Further, the Original Adjudicating Authority has not caused any inquiry with M/s Saakshi Securities Ltd. and without causing any investigation with M/s Saakshi Securities Ltd. who had issued documents to the appellants for legally handing over the gold to them simply did not accept the documents only for the reason that they were not produced before the investigating authorities. The appellants were issued with a show cause notice calling for reasons as to why seized gold should not be confiscated and they were directed to submit their reply to Original Adjudicating Authority. Therefore, it was obvious that the documents were produced before the Original Adjudicating Authority as evidence of legal possession of gold by the appellants. The Original Adjudicating Authority has rejected the documents only for the reason that they were not produced before the investigating authorities. We are constrained to observe that the Original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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