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TMI Blog2019 (11) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar and his retraction made from jail in its order. The Tribunal has given a categorical finding that the respondent no.1 herein had produced retail invoices of M/s Bhawana International in order to substantiate his claim that he had purchased two pieces of gold bars from Chandni Chowk, Delhi on 14.04.2014 and on his instructions his brother Chandreshwar Prasad Sah (Respondent no.3) had handed over the gold pieces to Sujeet Kumar (Respondent no.2) for carrying it to Patna to hand it over to Mahavir Prasad to make gold ornaments in exchange of the said gold. Under Section 130 of the Customs Act, 1962 an appeal would be maintainable before the High Court from every order passed in appeal by the Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for purposes of assessment) only if the High Court is satisfied that the case involves a substantial question of law. Appeal dismissed. - Miscellaneous Appeal No.405 of 2018 - - - Dated:- 15-11-2019 - Mr. Justice Ashwani Kumar Singh And Mr. Justice Anil Kumar Sinha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal vide Appeal Nos.C/75135, 75136 and 75137 of 2016. After hearing the parties, vide impugned order dated 30.10.2017, the Tribunal set aside the order passed by the Commissioner (Appeals) and allowed the appeals filed by the respondents. 8. Challenging the aforestated order passed by the Tribunal, Mr. Rajesh Kumar Verma, learned counsel appearing for the appellant submitted that the impugned order is bad in law as also on facts. The Tribunal failed to appreciate the case of the appellant in true perspective. It also failed to consider the submissions made by the appellant, which were based on convention and statutory and constitutional scheme. He has further contended that the Tribunal completely misconstrued the fact that the seized gold biscuits having having foreign marking and recovered from Sujit Kumar at Indo-Nepal Border in itself was the most reliable evidence that the seized gold biscuits were smuggled and contraband in nature. He has further contended that the Tribunal failed to follow the correct proposition of law inasmuch as it failed to treat the statement of Sujit Kumar and Shambhu Dayal Sharma, proprietor of M/s Bhawana International recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms authorities on 20.04.2014 but the said officials tore off the bill and sent him to jail. 6. I find that Shri Gopal Prasad/Shah filed surrender-cum-bail application before the Ld. Economic Offence Court. By order dated 21.07.2014, the ld. Economic Offence Court granted bail to the appellant on the ground that the complaint petition filed on behalf of the prosecution without sanction order from the Commissioner of Customs. In absence of the sanction order, the ld. Economic Offence Court cannot take cognizance. I find that the investigating officers recorded the statement of Shri Shambhu Prasad Sharma, proprietor of M/s Bhawana International, where he stated that he has not sold the said seized gold. Shri Shambhu Prasad was shown photographs of the seized gold where he denied and reiterated that the said gold bars were not sold to Shri Gopal Prasad/Shah by him. On perusal of the retail invoices, dated 12.04.2014 and 14.04.2014, I find that the goods were sold under the description of gold bars . They have paid output VAT of 1% on the selling price. The company s VAT TIN and PAN have been mentioned. The investigating officers had shown the photog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Tejwal Dyestuff Industries v. Commissioner of C.Ex., Ahmedabad [2007 (216) E.L.T. 310 (Tri.-Ahmd)] held as under :- 54.It appears that, having obtained confessional statements the Revenue Officers did not carry out the detailed investigation into the relevant aspects of the case, particularly, the Bank accounts of Bhimanis and the working of the assessee s factory. Recording of the confessional statement would not put an end to the investigation and the Revenue Officers should be careful to ensure that they are not tricked out of a regular and detailed investigation by making strategic confessions which are retracted by preparing affidavits soon after they are made and which affidavits are again strategically withheld from the Revenue Officers, so that they become complacent and do not carry out a fuller investigation. It appears that the Revenue Officers in the present case have fallen victim to this type of strategic confessional statements which have been retracted soon after they were made in the affidavits which were withheld by the deponents till the proceedings came up before the Commissioner, by which time the damage of not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal for decision. It is categorically observed by the Hon ble Supreme Court that the reference to the findings of the Commissioner as also that of the Tribunal was made only for the purpose of considering as to whether any substantial question of law arose for consideration before the Hon ble High Court and for no other purpose. Therefore, the Hon ble Supreme Court had not decided the matter on merit. In any event, I find that in the said case Revenue contended that the Bank s letter referred to invoices dated 25.10.1999 and in such circumstances, the question of effecting delivery by the Bank to the authorised dealer under delivery challan dated 23.10.1999, which is prior to the date of invoice is not credit worthy. It is also contended by the Revenue that the Tribunal proceeded on the basis of normal trade practice and ignored the evidences. The facts of the said case is not applicable in the present case. In this case, the appellant produced the retail invoices of M/s. Bhawana International and there is no material available on record that the said invoices are not genuine. In view of the above discussion, the impugned order cannot be sustained. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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