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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 ..... s Officials and not from any Port or Airport while being smuggled. Since the appellant was ill, he could not take steps for release of the seized goods. There is no evidence also to show that the goods were actually having any foreign markings. The Essay Certificate dated 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. The documents submitted by the Appellant No.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. Redemption fine and penalty - HELD THAT:- Without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 ₹ 9,78,000/- ( Rupees Nine lakhs Seventy eight thousand only) and Nepali Currency of ₹ 12,90,000/- (Rupees Twelve lakhs Ninety thousand only). The jewelleries were also there in the shop premises, which were not taken by the Officers. The Bills, Registers and other documents were kept in a bag and sealed by the Officers and kept in the custody of the Appellant No.1. Thereafter, the Appellant No.1 was taken to the Forbeshganj Custom Office and the Seizure List was prepared and goods were seized. The Appellant No.1 was also kept in the custody of the Customs Officers in the Customs Office for the period from 04-08- 2015 to 07-08-2015. During this period on 04-08-2015, statement of the Appellant No.1 was recorded when he had given statements at the instance of the Officers that the gold bars were allegedly having marking Rand Refinery Mark - 995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 of purchasing the gold from different importers and even he stated in his statement dated 18-01-2016, that he was purchasing gold of different brands including Rand Refinery Mark 9950 and in their purchase documents marking is not mentioned. While they sell the gold they also did not mention marking on the bills/invoices. He was shown the photo of the gold seized, which was not legible and he could not identify the marking. The said photo was also not made a part of this proceeding. He also submitted the ledger showing the transaction made on 24-07-2015 with the Appellant No.1 and the transaction took place on receiving payments from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of his contentions. 5. Pending adjudication, the learned Joint Commissioner considering the documents submitted by the Appellant No.1 vide his letter dated 12-10-2015 and praying for provisional release of the goods, granted provisional release verifying the documents and genuineness of the ownership of the seized goods valued at ₹ 40,80,158/- vide his Order dated 26-08-2016 subject to deposit of the Bond for the full value of the goods and 30% Security Deposit. The Appellant No.1 deposited ₹ 12,24,048/- and executed the Bond and got the entire goods and currencies released provisionally. 6. The learned Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ₹ 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 on the allegation of abating illegal importation of gold and silver by the Appellant No.1. The investigation made by the Department failed to unearth any evidence to that effect. The statement given by him has not been rebutted by the Department. The elements of abatement are also totally absent in this case. The imposition of penalty in a composite manner is contrary to law. The documentary evidence would prevail over oral evidences also. The imposition of penalty on the Appellant No.2 is not maintainable. 8. The Department also filed appeal before the lower appellate authority since the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. ), which have not been appreciated by the Authorities below. The practice of mentioning mark in the Invoice is not maintained in the business, only quantity and value are mentioned. The Sales Tax Registration Number is also mentioned in the Invoice and Money Receipt. The said transaction cannot be doubted wholly on the basis of unsubstantiated speculation to contend illegal importation of goods. learned Advocate further submitted that undisputedly the gold was seized from the shop premises and not from any Port or Airport while being smuggled. Undisputedly, the documents were also produced. On bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gold and thus the burden of Section 123 of the Customs Act, 1962 has been discharged. [ Para - 5 to 10 ] 7 Madhukar Sonaba Bhagat 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation - seizure of Indian and Nepalese Currencies - No violation of Foreign Exchange Regulation by the appellant - Department failed to prove that the currency in question was sale proceeds of smuggled goods. 10. Shri A.K. Singh, learned Authorized Representative 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 fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed gold of different brands but the sellers did not mention any brand in the invoice. While selling the gold by Shri Soni, he also did not mention brand name in the invoice. There is no evidence also to show that the goods were actually having any foreign markings. The Essay Certificate dated 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes were taken by the Appellant No.1 on 04-08-2015 when he was in the custody of the Customs Authorities. The Appellant No.1 also retracted his statement dated 04-08-2015 before the Customs Authorities under summons by giving statement on 15-10-2015. I find that the documents submitted by the Appellant No.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.), Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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