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TMI Blog2019 (12) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... h foreign markings. Thus gold totally weighing 998 gms. valued at Rs. 29,23,142/- was recovered and crime under 41 read with 102 Cr.P.C was registered. They were arrested and produced before the Metropolitan Magistrate Court, George Town, Chennai. The accused were enlarged on bail. Later, the case was transferred to the Metropolitan Magistrate of Economic Offences Court at Egmore on the belief that the case involved smuggling of gold. The Additional Chief Metropolitan Magistrate directed the Customs department to receive the seized goods and for further action. During such investigation by Customs, Mr.S.Ramki (Appellant-1) stated that he received gold bars from one Shri V. Ramachandran (Appellant-2) on the instructions of his maternal uncle Mr. P.Dilli Raja (Appellant-3). Shri Ramki also produced cash memos / bills for purchase of these bars and jewellery. On verification of these documents, department entertained a view that they are not genuine. Show cause notice was issued proposing to confiscate the gold and also for imposing penalty. After due process of law, the original authority confirmed the confiscation and also imposed penalties. The appellant filed appeal before the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of the gold. Department later contended the appellants had produced only xerox copies which is incorrect. The original bills were produced before the department and later taken back after substituting with xerox copies. Thus appellants have established that the gold was purchased from Imphal. Department also conducted investigation with the sellers as shown in the bills namely, Rashid Jewellery and Radhika Jewellery, Imphal who admitted that they have sold the gold described in the bills to the appellants. The department had also verified accounts kept by the sellers and found the carbon copy of the bills issued to the appellant. These documents would establish that the appellants purchased the gold from the sellers at Imphal. The allegation that the appellant has smuggled gold into India is therefore false and without any factual basis. 3.2 The department has denied to accept the bills stating that they are produced as an afterthought. He stressed that apart from a small discrepancy that place of residence has not been mentioned in the carbon copy kept with the seller, the original bills as well as carbon copy correlate and match fully. When the seller has admitted sale of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the case of the appellant. He adverted to the findings made by the original authority in the denovo order dt. 18.07.2018 and submitted that the original authority has confined himself to the directions made by the Commissioner (Appeals) and has not acted beyond the scope of remand. After enquiry, the original authority held that the original bills were not produced by the appellants before him or before the Magistrate Court while filing the bail application. To support this argument, Ld. A.R adverted to the copy of the bail application attached to the written submissions filed by the counsel for appellant. It is submitted by Ld. A.R that though the bail application is filed before the Magistrate Court George Town, Chennai on 20.03.2014, impression of the seal affixed on the bail application is that of Economic Offences Court at Egmore, Chennai-600 008. This itself would show that the bail application produced by them is a false one. Apart from this bail application, there is no other evidence to show that the appellants had furnished the bills at the time of applying for bail. 4.3 With regard to the discrepancies noted in the original bill and the carbon copy maintained in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere received by Customs from the Inspector of Police. After investigations SCN was issued by Customs authorities in which it is however alleged that two gold bars and one of crude bangle was concealed in the jeans pant of Shri Ramki and 2 gold bars and one crude gold bangle was concealed in the pants of Dilli Raja. Thus though in the SCN it is alleged that both Shri Dilli Raja and Shri Ramki were each carrying gold in the pants worn by them only one pant was seized along the gold by police and handed over to Customs. The Commissioner (Appeals) in the first round of litigation has observed that the seizure of one pant only does not fit into the narration of recovery and seizure given in the SCN issued by Customs department. 7. This apart it is the consistent case of appellants that they purchased the gold from Imphal. The bills also show that gold was purchased from Imphal. Shri V. Ramachandran is a permanent resident of Imphal and possess Voters ID issued from Imphal. All the three appellants are of the same family. Shri S.Ramki is sister's son of Shri Dilli Raja, and Shri Dilli Raja is the son-in-law of Shri V. Ramachandran. It is their case that the gold was meant to be given as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing the bill. Therefore, the ratio of such case laws would not apply in the facts of the present case. 12. In the instant case, no investigation has been carried out on how the gold biscuits were acquired by M/s.Rashid Jewellers and whether these were of a smuggled nature. The proprietor of M/s.Rashid Jewellers, in his statement, has stated that he acquired the gold from mortgage or from buying in the market. In the absence of the further investigation to show that M/s.Rashid Jewellers purchased the smuggled gold biscuits, it cannot be said that the gold biscuits found in the possession of the appellants were of smuggled nature. 13. However, to bring the case to a definite conclusion, it would be necessary to cause enquiry by obtaining the certified copy of the bail application to ascertain whether the impugned bills were available at the time of remand of the appellants after they were arrested by the police to rule out that the same were created on a later date. Accordingly, I set aside the impugned order and direct the LAA to ask the appellant to submit the certified copy of the bail application and also verify from the records of the case as to whether the impugned bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording Statements at this office on 12.05.2014." 10. On going through the discussions made by the original authority, I find that instead of confining himself to comparing or ascertaining the fact after obtaining certified copy of the bail application, has conducted re-adjudication as to whether bills are genuine or not. It is however recorded by him that bills were not available during seizure and that these were submitted to court later. Needless to say that the bail application was filed before court only after arrest and seizure. He does not state that the bills were not mentioned in the bail application. 11. Ld. Counsel has furnished certified copy of bail application submitted before the George Town Court, Chennai. Ld. A.R has countered the said application submitting that the impression of the seal seen on the application is dated 20.03.2014 and that too of Economic Offences Court at Egmore and therefore the certified copy cannot be relied. On perusal of the bail application furnished before me which is seen in page 12 of the compilation, the docket sheet of the bail application shows that it was filed on 01.03.2014. The Court has given the number as M.P.No.420/2014. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f said original and the carbon copy of bills of the seller have been extracted for making comparison. On bare perusal of both, it can be seen that both are of the same hand writing. The only discrepancy noted by the department, is that in the bill No.366, the purchaser is shown as Mr. Ramachandran, Moreh, Manipur whereas in the carbon copy kept by the seller, the name is written as V.Ramachandran, Moreh. There is no discrepancy or difference with regard to the description of gold. In para 11 of the earlier order by Commissioner (Appeals) he has discussed this aspect. The sellers have given statements admitting sale of gold vide such bills to the appellants. The books of account kept by the sellers in their ordinary course of business also reflects the transaction. Except for slight difference in the name mentioned in one bill there is no serious discrepancy. 14. From the discussions made above, I do not find anything to suspect that the bills were created at a later stage. The findings made by Commissioner (Appeals) vide order dt. 28.9.2017 ought not to have been interfered by the LAA. The original authority ought to have confined to the direction given by Commissioner (Appeals) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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