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TMI Blog2020 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... family and the said carriers at the probable time of handing over the gold at the residence of Kamal Kumar Jain, though Conversation details is not available. Santosh Kumar Jain having his business in Birgunj, Nepal is also found to be using the address of Shri Santosh Kumar Jain in India. Ankur Kumar Jain and Saurav Kumar Jain are sons of Shri Santosh Kumar Jain - the premise of Shri Krishna Kumar Jain at Raxaul was searched and they were examined only after intervention of Hon ble High Court at Patna. In consideration of the circumstances, there is no doubt that they are involved in the present deal of smuggling. However, the Department has not been able to establish/distinguish the specific role played by the family members namely Ankur Kumar Jain and Saurav Kumar Jain. Also, the Department has not been able to establish the involvement of Shri Arjun Sah in the case and the penalty imposed upon them i.e. Shri Saurav Kumar Jain alias Raja, Shri Ankur Kumar Jain alias Vicky Jain and Shri Arjun Sah is not sustainable and accordingly ordered to be set aside with consequential relief, if any. A penalty of ₹ 5,00,000/- only on Shri Krishna Kumar Jain and Shri Santosh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/o Shri Krishna Kumar Jain, Raxaul (West Champaran) and Mobile No. 9473017907 is registered in the name of Shri Krishna Kumar Jain alias Pappu Jain. They further stated tht the gold was to be delivered at Muzaffarpur to Shri Vikash Agarwal, Prop. M/s Agarwal Gold House, Near Garibsthan Road, Muzaffarpur- 842005 (Mobile No. 9334082557) and Shri Dhiraj Kumar, Prop. Of M/s Dhiraj Jewellers, Patna-800004 and that they used to get money delivered at Shri Krishna Kumar Jain s residence through HAWALA from Shri Rajesh Kumar Agarwal, Shri Arjun Sah and Shri Ram Naresh Chaurasiya all of Muzaffarpur (Bihar). 3. On the basis of statements recorded under Section 108 of Customs Act, 1962 of Shri Sumit Goyanka Shri Awadhesh Pandey and call details record obtained from various telecom service providers, follow up investigation was conducted. On search of residential premises of Shri Arjun Sah ₹ 5,00,000/- (Rupees Five Lakhs) only was recovered which on inquiry was found to be lawfully acquired by him and accordingly released to him before issuance of the Show Cause Notice. On search of residential premises of Shri Ram Naresh Chaurasiya, 299 gms. of primary gold was recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- (Rupees Fifty Thousand only). (h) Shri Dhiraj Kumar ₹ 50,000/- (Rupees Fifty Thousand only). (i) Shri Rajesh Kumar Agrawal, ₹ 50,000/- (Rupees Fifty Thousand only). (j) Shri Arjun Sah ₹ 50,000/- (Rupees Fifty Thousand only). No penalty was imposed on Shri Ram Naresh Chaurasiya as a separate case had been initiated against him for 299 gms. primary gold found from his residential premises. 7. On appeal, the said Order-in-Original was upheld by Ld. Commissioner (Appeals), Patna against which the following persons only are in appeal before the Tribunal:- (i) Shri Krishna Kumar Jain, (ii) Shri Santosh Kumar Jain, (iii) Shri Saurav Kumar Jain alias Raja (iv)Shri Ankur Kumar Jain alias Vicky Jain (v) Shri Arjun Sah. 8. Ld. Advocate appearing for Shri Krishna Kumar Jain, Santosh Kumar Jain, Saurav Kumar Jain alias Raja Ankur Kumar Jain alias Vicky Jain submitted that the seizure was made by Police and subsequently handed over to Customs. As the statements of the persons carrying gold were recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Jain by Shri Santosh Kumar Jain. He made the Bench go through the investigation report that the residential premises of Krishna Kumar Jain at Raxaul could be searched only after intervention of Hon ble High Court at Patna. It is on record that there was conversation between them and the carriers around the time of delivery. He cited Hon ble Supreme Court s judgment in the case of Collector of Customs, Madras Others V. D. Bhoormull, 1983 (13) E.L.T. 1546 (S.C.) wherein it was clarified that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree and all that is required is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. That the ownership of the seized foreign gold is not claimed by any one and it was seized while being carried/concealed in the shoes of the carriers from a train coming from Raxaul, a town bordering Nepal is sufficient to prove that both Shri Krishna Kumar Jain and Santosh Kumar Jain are deeply involved in the act of smuggling. 11. Heard both sides and perused the appeal records. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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