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TMI Blog2020 (3) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... pak Bansal), cogent explanation was given by M/s. Lawat Jewelers, as they did not know the proper name of Shri Deepak Bansal and they only knew his nick name Vicky , they issued invoice in the name of his brother, who was also purchasing gold from them and the two brothers were operating their business from common premises at Kucha Mahajani, Chandani Chowk, Delhi. The driver of the Tata Sumo Vehicle has also corroborated the version of Deepak Bansal of purchase of gold bars from Jaipur. So far further investigation done by the Department resulted into the receipt of purported letter dated 10.12.2002 by fax from CSFB, Zurich by Corporation Bank, Mumbai. We find that this letter on the one side states that the CSFB has been supplying South African Origin gold from Rand Refinery and Harmony Refinery and thereafter, have vaguely stated that CSFB did not have stock of South African gold from July, 2002 and has supplied Credit SUISSE brand gold from their own mint in Switzerland. This letter only creates a presumption, but is not conclusiveit is evidently clear that the subsequent change of the statement of the bank officers is under undue influence exerted by the Revenue Officers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers recovered two bundles, one big and one small in size, from below the footmat of the front seat, adjacent to the driver. The big size bundle on opening was found to contain four small packets wrapped in transparent plastic covers. Each of these small packets contained 10 bars of yellow metal. The small bundle contained two smaller packets containing 10 and 9 bars of yellow metal. Each of the 59 bars thus recovered, besides the impression of an elephant in a circle, bore the marking HARMONY, SOUTH AFRICA, 10 TOLAS, 999, FINE GOLD . 4. Shri Dinesh Bansal, on being asked, informed that he had purchased the recovered gold bars from Jaipur. But as he failed to produce any documentary evidence, the gold bars were seized under Section 110 of the Customs Act, 1962 alongwith the Tata Sumo vehicle, which was used for carrying the goods. The proceedings relating to recovery and seizure were embodied in a panchnama. A certified goldsmith later confirmed that the gold bars were of 999 purity, and valued the same at ₹ 37.4 Lacs approx. 5. Shri Jagdish Kumar, the driver of the vehicle, in his statement recorded under Section 108 of the Customs Act, 1962, inter alia stated that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 - 1.30 PM and the remaining deliveries were taken around 4 - 4.30 PM; that generaly the gold received from the. Bank was brought to their office from where it was sold and delivered; that, however, out of 150 gold biscuits/bars received against Delivery Order No. 4641, 59 (fifty nine) were handed over to Shri Deepak Bansal (brother of Pradeep Kumar) in the Corporation Bank itself by Shri Parmeshwar (staff of law at) on his instructions; that no bill was taken by Shri Deepak alongwith him, as the same was later prepared by them; and that Shri Deepak left for Delhi from the bank. He further stated that they were dealing in gold biscuits from 1997; that they had been extended green channel facilities for the purpose of sales tax; that this facility was extended to two other jewellers; that they also procured gold from Corporation Bank against Delivery Order No. 4647 on 11.09.2002; and the gold was of Harmony brand of South Africa. 8. The enquiries conducted from the Corporation Bank elicited the following response:- (i) Corporation Bank vide their letter dated 11.09.2002 informed DRI, that they were selling gold to bullion traders: that the brand names of the gold usually sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold biscuits bore the marking Credit Suisse Switzerland 10 Tolas, 999 and that the goods were examined by Inspector Shri Arun Kumar and supervised by Shri Harish Chander, Superintendent of Customs. He further stated that after clearance the goods were handed over to Shri Omender Sharma/Shri Manoj Kumar of Brink s Arya India (P) Ltd . (Transporter) at Air Cargo Complex, IGI Airport, New Delhi. 14. Shri Arun Kamar, Customs Inspector, who examined the goods pertaining to the Bill of Entry No. 361317 dated 29.08.2002, in his statement dated 18.12.2002, recorded under Section 108 of the Customs Act, 1962, inter alia stated that the gold biscuits examined and cleared by him were of the marking CREDIT SUISSE 999 10 TOLAS . To a specific query as to why he did not mention the marking, purity, net weight and quantity in the examination report, when there were such specific directions given by the Group Appraiser, Shri Arun Kumar replied that he wrote the examination report as per the prevailing practice. 15. Shri Harish Chander, the concerned Customs Superintendent, in his statement recorded under Section 108 ibid, inter alia stated, he had seen the statement of Shri Arun Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement dated 16.12.2002 made under Section 108 ibid inter alia stated that Shri Dinesh Bansal and Shri Pradeep Bansal, residents of Rohtak were two real brothers and working as commission agents dealing in gold and silver in Kucha Mahajani, Delhi; that they had purchased 50-60 TT bars of gold 2-3 times; that the gold biscuits seized by DRI were delivered by his employee Shri Parmeshwar to Shri Dinesh Bansal in the premises of Corporation Bank on 10.09.2002; that the amount of ₹ 36 Lacs was paid by Shri Dinesh Bansal in cash; that Shri Parmeshwar made full payment to the Corporation Bank and took delivery of 150 Gold TT Bars; that he delivered 59 Gold TT Bars out of that consignment of 150 bars to Shri Dinesh Bansal and reached company s office with balance 91 gold biscuits and deposited the same; that for taking the delivery of gold they used to contact Shri Ramesh Kamath, Sr. Manager, Shri Deshpande, Manager and Shri Sunil Kumar, Probationary Officer; that so far as he knew, the delivery of 150 gold bars was given by Shri Ramesh Kamath and Shri Sunil Kalra, as per signature appearing in the delivery order; that gold biscuits supplied to Shri Dinesh Bansal were of Harmony - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation Bank, Jaipur, in his statement under Section 108 ibid, inter alia stated that there was no stock of South African gold in their vault on 10.09.2002 and 11.09.2002, hence, there was no question of supplying Harmony brand to M/s Lawat Jewellers (P) Ltd. on these dates. On being asked about the Delivery Order No. 303/4658 dated 13.09.2002, wherein against the delivery of 40 CSFB brand TTB, the word Harmony had been written, he stated that he had written word Harmony in good faith at the instance of Shri Suresh Soni of M/s Lawat Jewellers (P) Ltd. 23. Shri K.V. Deshpande, Manager of Corporation Bank, Jaipur, in his statement under Section 108 ibid, inter alia stated that the gold delivered to M/s Lawat Jewellers of Jaipur through their employee Shri Parmeshwar, was of Credit Suisse marking; that it was not of South African origin as they did not have any stock of South African gold in their vault; that while taking delivery from them, Shri Parmeshwar was not accompanied by anybody or any buyer of M/s Lawat Jewellers, and that he did not know Shri Pradeep Kumar or Shri Dinesh Bansal of Rohtak. 24. Shri N. Ramesh Kamath, Sr. Manager, Corporation Bank, Jaipur was ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amat and Shri N. Ramesh Kamat Managers/Employee of the Corporation Bank was dropped. The Ld. Commissioner observed that interception of the appellant with gold bars was on the basis of intelligence. At the time of interception Shri Dinesh Bansal could not produce any document of legal-procurement of the said gold bars, but nevertheless claimed to have purchased the gold from M/s. Lawat Jewellers Pvt. Ltd., Jaipur. Further, Lawat Jewellers also admitted to the sale of gold bars to Mr. Dinesh Bansal, after procuring the same from corporation bank, Jaipur, vide delivery challan No. 4641 dated 10.09.2002. The said gold bars were part of a consignment of 2 thousand gold bars imported earlier by Corporation Bank on 29.08.2002, but on the basis of details and investigation, the transaction does not appear to be genuine. 31. It was further observed, although Lawat Jewellers are in business of trading in gold and had on the said date 10.09.2002, purchased 150 gold bars and more from Corporation Bank, delivered to them at about 1:15 PM of CSFB Brand. CSFB either procured gold from Harmony, South Africa or Rand Refinery and that the bars had the mark of Harmony with Elephant Head on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI officers on 11th September 2000 have not been controverted by the respondent revenue. Further Lawat Jewellers through its managing director Mr. Soni produced evidence, that on 10 September 2002 they had purchased a total of 380 gold bars from Corporation Bank, Jaipur, as follows: (i) 150 gold bars vide delivery order No. 4641 (ii) 50 gold bars with the delivery order No. 4642 (iii) and 180 gold bars vide delivery order No. 4646. (Total 380 Gold Bars). Mr. Soni further stated that gold bars vide delivery order No. 4641 were received at about 1:15 PM, and the remaining 2 delivery were taken between 4 and 4:30 PM on the same date. He further stated that at the time of delivery by them, no bill was taken by Mr. Deepak Bansal, as he was in a hurry and the bill was prepared by them later on in the day, as Mr. Bansal had left for Delhi state from the bank. The issued 3 bills in respect of the 59 gold bars which are purchased by Shri Bansal, that is, 2 bills of 20 gold bars each and 1 for 19 gold bars. Shri Nawal Kishore Soni brother of Suresh deposed on 3 March 2003 before the officials, that they knew Mr. Deepak Bansal by his nickname Viki and hence wrote the name as P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Dinesh Bansal from whose procession the goods gold was recovered by the DRI officials, have discharged his onus by giving information and details of acquisition from Lawat Jewellers, and further Lawat Jewellers have also confirmed having sold the seized gold to Mr. Bansal. She further urges that by resorting to further investigation and by using pressure tactics against the officials of the bank, revenue tried to create confusion as regards the actual brand of gold bars delivered by Corporation bank to Ms. Lawat Jewellers. Even the letter dated 10th of December 2002, issued by Credit Suisse First Boston Switzerland, to Mr. Raghav Kamath, of Corporation bank, Mumbai, states that-CSFB have been supplying gold T.T. Bars to Corporation bank, at various location in India which includes the Jaipur branch. CSFB further confirmed that they used to deliver Harmony 10 Tola Bars, but they do not have stock of such bars since July 2002 anymore, and did not deliver any Harmony brand of bars to Corporation bank, Jaipur, during the course of the year 2002. The learned Counsel states that the said letter of CSFB is vague, and further is not a piece of reliable evidence, as the person issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner have conveniently ignored this vital fact on record. Learned Commissioner have placed heavy reliance on delivery order No. 303/4658 dated 13 September 2002, by which lawat jewellers purchased 60 pieces of gold bars, from Corporation bank. Even this subsequent purchase from Corporation bank by lawat jewellers of 60 gold bars, vide delivery order No. 303/4658, the bank mentioned Harmony brand. Mr. Suresh Soni stated that this was written by the bank, on his request, to avoid any controversy, as already have arisen. 41. It is further urged that the Department have alleged, that the word Harmony was subsequently added in the delivery order No. 303/4658 dated 13 September 2002. This allegation is only vague, on the basis of subsequent statement of Mr. SK Kalra, of Bank. Learned Counsel draws attention to the certificate given by the handwriting expert, who have certified that the word Harmony have also been written at the same time when other entries were made in the said invoice No. 303/4658. This evidence have not been controverted. 42. That the Department is ignoring the evidence which is not suiting them and at the same time placing reliance on the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot delivered any Harmony brand gold bars to Corporation Bank during the year 2002. The said statement/letter of CSFB is not reliable as the same is firstly vague, and also self-contradictory. Secondly it is only a photo copy of fax message, received purportedly by Mr. R Kamath of Corporation bank. The original was never produced. The said letter does not have any reference to the context it is issued. Further the said letter does not disclose the date of packing of the gold bars, nor any record of the particular brand of gold bars supplied, with reference to the invoice No. and bill of lading. This letter is also not reliable for the reason that the officer of the bank named therein -Mr. R. Kamath, who corresponded with the supplier CS FB, have not been examined by revenue in the adjudication proceedings. Further the author of the said letter dated 10th December 2002, have not been identified and in what capacity he wrote the said letter, nor the said person was examined in the adjudication proceedings. Further fax messages cannot be substantial evidence, to prove or disprove the existence of certain facts. The learned Commissioner-adjudicator was bound to verify the erroneous ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to arrive at Delhi Gurgaon border, at NH-8 from Jaipur within 4 hours. 49. That he further urges, carrying of a consignment of about 6 KG gold, without any supporting documents, in spite of the provisions of Section 123 of the Customs Act, is sufficient proof that the gold was smuggled. Further, delivery of aforementioned quantity in the bank premises itself, which is a public place, and denial of bank officer (Mr. Kalra) that he did not mark any other person accompanying Mr. Parmeshwar, also proves that the story of appellants is a concocted one. It has come out as a result of detailed investigation, that Corporation Bank, Jaipur, did not have any stock of Harmony brand Gold Bars, on the date of delivery 10.09.2002, to Lawat Jewellers. 50. Further urges that the master AWB No. 72432592205, as show in BOE No. 361317, and packing list, clearly shows a Handmade Sketch of the Gold bars as Credit Suisse Switzerland, 10 Tola 999 . The BOE mentions the country of origin as Switzerland. He further disputes the claim of Lawat Jewellers, including receipt of Harmony brand gold bars after 10 th September 2002, also. Further, places reliance on copy of the letter dated 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es gold bars mainly from United Bank of Switzerland, who have got their own mint and usually supply the gold bars having UBS Trade Mark. It is also stated by the Bank that the other suppliers, CSFB, Switzerland did not have their own mint and have sourced their gold normally from Harmony, South Africa or Rand Refinery , South Africa and supplied the gold to the Corporation Bank from Zurich. Further in the course of investigation, it has come out that sometime in 2002, CSFB has set up their own mint in Switzerland and are also supplying gold bars under their brand name CREDIT SUISSE . Further, M/s.Lawat Jewellers has also confirmed that they received the sale consideration of ₹ 36 lakhs for sale of 59 gold bars on 10.09.2002 itself, from Shri Deepak Bansal. Sofar, the issue of sale invoices in the name of Shri Pradeep Kumar (brother of Shri Deepak Bansal), cogent explanation was given by M/s. Lawat Jewelers, as they did not know the proper name of Shri Deepak Bansal and they only knew his nick name Vicky , they issued invoice in the name of his brother, who was also purchasing gold from them and the two brothers were operating their business from common premises at Kuch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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