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TMI Blog2020 (1) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... significant to note that the entire case is made out on the basis of statement of Appellant No. 1 - The other statements including Appellant No. 1 s subsequent statement and purchase documents were discarded as afterthought. Apparently, the statement dated 23.06.2017 of Appellant No. 1 is uncorroborative in nature. The gold bangles cannot be held to be of smuggled nature. Hence, the confiscation of the gold bangles and imposition of penalties are not justified - Appeal allowed - decided in favor of appellant. - Customs Appeal Nos.75021 & 75030 of 2019 - FINAL ORDER NO. 75032-75033/2020 - Dated:- 6-1-2020 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Ms.Paulami Sikadar, Advocate for the Appellant (s) Shri S.Guha, Authorized Representative for the Respondent (s) ORDER These appeals are arising out of a common order and therefore, both are taken up together for disposal. 2. The relevant facts of the case, in brief, are that on 23.06.2017 Shrimati Manidipa Deb Roy Choudhury (Appellant No. 1) while travelling to Kolkata by Air India Flight at around 10.30 Hrs. was intercepted by the CISF staff during Securit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below proceeded on the basis of the initial statement dated 23.06.17 of the appellant no. 1 which is un-corroborative in nature. It is further submitted that the Investigating Officer recorded various statements subsequently of different persons who have stated that the appellant no. 2 is owner of the seized goods. It is also submitted that the seized ornaments are the family property inherited by the appellant no. 2 from her in laws. The entire seizure and confiscation of the goods have been made on the basis of assumption and presumption. The allegation of the smuggled gold converted into ornaments is without any basis. The Learned Advocate submitted that the Report of the CISF and the Customs are totally different. It is further submitted that the goods were intercepted by the CISF and therefore the burden of proof on the appellants under Section 123 would not be applicable. It is also submitted that the appellant produced the purchase documents which cannot be brushed aside as afterthought without proper investigation. The Learned Advocate referred to various Case Laws. 4. The Learned Authorised Representative on behalf of the Revenue reiterates the findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... metal was given by somebody to be carried to Kolkata and return after delivery for which she would be paid ₹ 2,000.00. It was told that her husband Mr. Nantu Choudhury was also travelling in the same Air India flights to Kolkata. It is stated in the said report that as per regular input from their source, the CISF Officer detained the appellant no. 1. I find that CISF Officer handed over 18 nos. Bangles and the appellant no. 1 to the Custom Officers on the same day, who had seized the gold immediately. So, the objection raised by the Learned Advocate that the seizure of the gold is bad in law, cannot be sustained. The case laws referred by the learned Advocate would not be applicable to the facts of the present case. 6. The case of the appellants are that the appellant no. 2 Shrimati Rama Chowdhury is the owner of the seized gold ornaments, who is the head of the family, inherited from her late Father-in-Law late Jatindra Mohan Chowdhury. The appellant no. 1 is the wife of appellant no. 2's younger son Shri Nantu Chowdhury. The appellant no. 1 was carrying the gold ornaments taken from the appellant no. 2 which was handed over by her eldest son Shri Ratan Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 herein, wife of late Niranjan Chowdhury and mother-in-law of the appellant no. 1 was recorded on 29.06.2017. It is stated that these 18 gold bangles have been kept secured by her first son Shri Ratan Chowdhury, only with her permission, he handed over these Bangles to his younger brother s wife to sell them at Kolkata market. The appellant No. 2 filed application dated 14.08.2017 for provisional release of the gold. (iv) Again, the appellant no. 2 Shrimati Rama Chowdhury appeared before the Customs Officer and her statement recorded on 23.10.2017, where she stated that the Gold Bangles were possessed by her from her father-in-law late Shri Jatindra Mohan Chowdhury as ancestral property. It is stated that her husband had handed over these jewellery to her as ancestral property, who died 14 years ago. She confirmed that she had given gold bangles to her daughter-in-law Shrimati Manidipa Deb Roy Choudhury to sell them at Kolkata market at higher price as her family is facing acute financial hardship and their family business is not running well. It is further confirmed that she is a widow lady and her age is 74 years. The seized gold were her family property inherited f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been smuggled from neighboring country. 8. It is noticed that in reply to Show Cause Notice, the appellant no. 2 submitted photocopy of the Invoices of one Ram Thakur Jewellery to substantiate the purchase documents and claimed the ownership of the gold. The department directed the Appellant No. 2 to produce the original copy of invoices, which were complied by the Appellant No. 2. According to the department, the production of the purchase documents in reply to Show Cause Notice is after-thought. It is seen from the impugned Order that the Customs Officers during verification found that there is no existence of the shop Ram Thakur Jewellery . It is observed by the Commissioner (Appeals) that the quantity shown in the seizure list and the purchase invoice are not similar. In this context, the Learned Counsel submitted that the appellant submitted Affidavit giving translation of the Purchase Invoices which are in Bengali language. For the proper appreciation of the case the relevant portion of the affidavit of the appellant no. 2 is reproduced below :- I Smt Rama Chowdhury, W/o Late Niranjan Chowdhury, aged about 75 years, by profession house wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Purchase documents indicate the purchases undertook in 1989-1991, i.e. about 30 years ago. According to the local people, there was an existence of Ram Thakur Jewellery 15 years back. It appears that the Investigating Officer had not taken any pains to enquire about the existence of Ram Thakur Jewellers from the local market or with the concerned municipal authorities whether there was any shop titled Ram Thakur Jewellery in 1988-89. Thus, the said documents cannot be brushed aside as after thought. In effect, the appellant produced the documents for purchase of the said seized gold which was not bearing any foreign mark. Hence, in my considered view, the appellant discharged the onus under the provision of the law regarding the acquisition of the gold. 10. The other aspect of this case is that the Customs Officers mainly proceeded on the basis of the initial statement of the appellant no. 1 as sole evidence. They have not verified the contents of the said statement with corroborative evidence. In so far it was contended in the said statement that the appellant was frequently travelling by Flights and they are habitual Smugglers. But no verification was conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court observed that it is settled law that though the admission is extremely important piece of evidence it cannot be said to be conclusive and it is open to the person who has made the admission to show that this is incorrect. 13. The Tribunal in the case of Hiner Pipes Pvt. Ltd. Vs. Commissioner of C.Ex., Rohtak 2015 (317) ELT 136 (Tri-Del) observed as under :- 5. Further, the Tribunal in the case of M/s. Tejwal Dyestuff Industries v. CCE, Ahmedabad [ 2007 (216) 310 (Tri.-Ahmd)] has observed that the Revenue Officers after recording the confessional statement believes that the same has put an end to the investigations and does not carry the matter for further investigation. Though the confessionals statement may be the starting point of investigations but in view of the other evidence available on record and in the absence of the other evidence indicating, clandestine removal, the same cannot be made the sole basis for deciding against the assessee. To the same effect is the decision of the Hon ble Delhi High Court in the case of Commissioner of Income Tax v. Dhingra Metal Works 2010 TIOL -693-HC-DEL-IT laying down that though an admission is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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