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TMI Blog2020 (9) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the Appellant No.1 Ratan Kumar Shah is the Proprietor of M/s. Ratan Jewelers, Jogbani - Arariya, Bihar, engaged in the business of gold and silver. During the course of his business, the Appellant No.1 had purchased 3(three) pieces of gold weighing 857.450 Gms. and silver weighing 4.182 Kgms. from Shri Balaji Impex of Rajasthan against Invoice No.SBI/15-16/3937 dated 24-07-2015 and Invoice No. SBI/15- 16/3920 dated 24-07-2015 respectively. He purchased the said gold and silver on payment of cash. The appellant had accepted Rs. 30,00,000/- (Rupees Thirty Lakhs only) against two Money Receipts being No.63 dated 21-07-2015 and 67 dated 26-07-2015 from Md. Minatullah Ansari (Appellant No.2) for selling of gold jewellery. On 04-08-2015, the Officers of the Department visited the shop premises of the Appellant No.1 and searched the premises and recovered three cut pieces of gold and silver coins and some quantity of silver. The Officers also recovered Indian Currency of Rs. 9,78,000/- ( Rupees Nine lakhs Seventy eight thousand only) and Nepali Currency of Rs. 12,90,000/- (Rupees Twelve lakhs Ninety thousand only). The jewelleries were also there in the shop premises, which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked and after all he is also a heart patient and stated that what was recorded from him on 04-08-2015 was incorrect. He was kept in the custody at Forbeshganj Customs Office from 04-08-2015 to 07-08-2015 and was facing threat of the Officers and on 07-08-2015; he was allowed to go home on furnishing Bail Bond. He clearly stated before the Officers that he had purchased the gold from Shri Balaji Impex, Jaipur, Rajasthan and an amount of Rs. 30,00,000/- (Rupees Thirty lakhs only) was given to him by Md. Minatullah Ansari (Appellant No.2). The Nepali Currency was relating to business transaction in his shop and that it was common to accept Nepali Currency at Jogbani. He also explained the reason for contradicting his earlier statement. There is no rebuttal evidence in respect of the appellant's contention in his letter dated 12-10-2015 and statement dated 15-10-2015. The Department investigated the matter further from the supplier of gold and silver. Shri Ratan Lal Soni of Shri Balaji Impex, in his statement dated 23-11-2015 and 18-01-2016 has clearly stated that the said gold and silver was sold by them to the Appellant No.1. Shri Ratan Lal Soni also submitted the copies of invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as would be appearing from internal page - 19 of the Order-in-Original, denying and disputing the allegations. It was vehemently contended that since the goods were recovered from the shop premises and the documents have been submitted in support of the gold and silver, the seller of the gold also accepted the position, the burden under Section 123 of the Customs Act, 1962 has been discharged. The belated submissions of the documents cannot be the only ground for doubting the genuineness of the documents, more particularly when the seller and the buyer accepted the position. The supplier of the gold also explained that the same has been supplied by them since they were also procuring the said branded gold from the importers. The silver of such quantity cannot be seized since it is below 20 Kgs. and is covered by the Boards's Circular dated 11-06-90. The Indian Currencies and Nepali Currencies were the sale proceeds of the jewellery to different customers and there is no evidence of buyer of the smuggled goods and there is no transaction of sale of any smuggled goods. Section 121 of the Customs Act, 1962 does not apply. The Appellant No.1 also relied upon some decisions in support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and the grounds that the Order of the learned Joint Commissioner is erroneous in view of the fact that the same has been passed wholly on the basis of surmises and conjecture. The documentary evidence will prevail over the oral evidences. The purity of gold does not show that they were of foreign origin. The supplier of the gold accepted in supplying the gold and silver and thus, the burden of Section 123 of the Customs Act, 1962 was discharged. From the print on the plastic packet cannot be a factor for inferring the origin of the goods in the packet. Packets are available in the market and silver was not of foreign origin. The coins were also not of foreign origin. The currencies are not liable to confiscation. The decisions cited before the Adjudicating Authority are applicable to their case. The Appellant No.2 also made his position clear by contending in his appeal that he is a bona fide citizen of India and owns two tractors and earned from cultivation of Sugar cane, Corn, Rice and Vegetables. He admitted that he had given Rs. 30,00,000/- (Rupees Thirty Lakhs only) to the Appellant No.1 as advance for making gold jewellery and ornaments. He has been entangled in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and silver to the Appellant No.1 against the invoices on receiving payments against cash reflecting in the ledger. Md. Minatullah Ansari (Appellant No.2) also accepted having paid the money to the Appellant No.1 as an advance against Money Receipt. There is no rebuttal evidence to that effect. On producing the procured documents, the Appellant No.1 had discharged the burden under Section 123 of the Customs Act, 1962. The existence of the document when not disputed, mere nonproduction of documents at the time of seizure cannot led to infer about genuineness of the same, more particularly when the reasons have been explained by the Appellant No.1 in his statement dated 15-10-2015 before the Customs Authority. learned Advocate also contended that when the buyer and seller admitted the transaction, the genuineness of the documents cannot be doubted. The silver was also not liable to be confiscated in view of Board's Circular referred and it was also below 20 Kgs. The learned Advocate relied upon the Tribunal's decisions in the case of - Samir Kumar Roy - 2001 (135) ELT 1036 (Tri. - Kol), Ganesh Prasad - 2005 (195) ELT 1103 (Tri. - Kol.) and Ramchandra - 1992 (60) ELT 277 (Tri. ), whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed [Para- 8 & 9] 3 Samir Kumar Roy 2001 (135) ELT 1036 (Tri-Kol.) Purchase of gold by the appellant in India in support of statement of seller - All the documents were verified - Statement of seller of gold is sufficient to legal acquisition of gold, the burden under Section 123 of the Customs Act, 1962 is discharged [Para -8 &9] 4 Ganesh Prosad 2005 (191) ELT 1103 (Tri - Kol.) The Silver is not of foreign origin and the quantity was much less than that of the quantity mentioned in the Board Circular dated 11-06-1990 and does not come under the purview of Section 123 of the Customs Act, 1962. [Para-3] 5 Gopal Prasad -Vs- Commr. of C.Ex,Cus,& ST, Patna 2018 (362) ELT 309 (Tri.-Kol.) No material available on record to show that retail invoices placed by the appellant are false and fabricated - the investigation officers not verified the information contained in retail invoices - records and documents of seller required to be verified which has not been done in this case. 6 S.K. Chains 2001 (127) ELT 415 (Tri-Mum.) Transaction between the appellant and the supplier was not proved to be fake - The appellant produced the documents showing the legal acquisition of gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive on behalf of Revenue reiterated the findings of the learned Commissioner (Appeals). He further submitted that the Appellant No.1 could not submit the purchase documents at the time of search. He placed reliance on the statements dated 18-01-2016 of Shri Ratan Lal Soni of Shri Balaji Impex to point out that the invoices were not containing any mark and the goods seized were not the same goods as sold by Shri Ratan Lal Soni to the Appellant No.1. The document of purchase of gold supplied to the investigating officers by Shri Ratan Lal Soni of Shri Balaji Impex also was not containing brand name "Rand Refinery 995". He did not offer any comment as to any investigation made in respect of the purchase documents submitted by Shri Ratan Lal Soni and the records maintained by Shri Ratan Lal Soni showing purchase and sale of gold and silver. 11. Heard both sides and perused the appeal records. 12. I find that on 04-08-2015, the Officers of the Department searched the premises of Sri Ratan Kumar Shah (Appellant No.1) and recovered three cut pieces of gold and some quantity of silver and silver coins along with Indian Currency and Nepali Currency, which has been reflected in the Seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 07-10-2015 do not also suggest the gold were of foreign origin since the purity was in the range of 992.8 to 993.6. The imported gold generally is having purity of 999 per mille. It is very difficult to hold that the gold were smuggled one. I also find that the statement was taken from Md. Minatullah Ansari (Appellant No.2), who in his statement accepted paying Rs. 30,00,000/- (Rupees Thirty Lakhs only) as an advance towards purchase of gold ornaments. I do not find any rebuttal evidence on the statements of Appellant No.1 and Shri Ratan Lal Soni of Shri Balaji Impex and also Md. Minatullah Ansari (Appellant No.2). Their statements were also supported by documentary evidence. Before adjudication, the documents and statements were verified by the Department and the entire goods and currencies were provisionally released on being satisfied about genuineness of the documents and ownership of the goods. The Adjudicating Authority confiscated the goods wholly on the basis of assumption and presumption inferring some circumstantial evidence ignoring documentary evidence. He also did not consider the absence of evidence as to the sale proceeds of smuggled goods and confiscated the Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 appear to be genuine and on submission of the documents he has discharged the burden under Section 123 of the Customs Act, 1962. There is no evidence on record to show that the seller Shri Ratan Lal Soni of Shri Balaji Impex was an active collaborator in this transaction, rather Department did not proceed to investigate in respect of the purchase documents submitted by Shri Ratan Lal Soni during investigation showing purchase of imported gold from different importers. Since the Appellant No.1 had discharged the burden, the confiscation cannot be held to be legal and proper. The decisions cited by the appellants in the case of - Imtiaz Iqbal Pothiwala - 2019 (365) ELT 167 (Bom.), Samir Kumar Roy - 2001 (135) ELT 1036 (Tri. - Kol.), Ganesh Prasad - 2005 (191) ELT 1103 (Tri. - Kol.), Gopal Prasad - 2018 (362) ELT 309 (Tri. - Kol.), S.K. Chains - 2001 (171) ELT 415 (Tri. - Mum.), Madhukar Sonaba Bhagat - 2019 (368) ELT 990 (Tri. -Kol.), Nand Kishore Somani - 2016 (333) ELT 448 (Tri. - Kol.) and Nand Kishore Modi - 2015 (325) ELT 781 (Tri. - Kol.) are squarely applicable to the facts of the present case on the proposition that the transaction between the appellant and the supplier wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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