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2021 (7) TMI 630

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..... ued to Sri Subhash Viswakarma, the Branch Manager of M/s. Monopoly Carriers & Cargo (P) Ltd. Chennai. In his statement recorded under section 108 of the Customs Act, 1962, he stated that one of his staff Sri Anil received a parcel from one Sri Naveen who told him that it contained some "artificial stones‟. The parcel was booked with Naveen as consignor and Sri Gopal, Kolkata as consignee by airway bill dated 26.12.2016. It was also stated by him that he did not obtain full address, ID proof of these people. 1.3 On receiving information about detaining the parcel on 27.12.2016, he and his staff along with Sri Naveen and his associate Sri D.P. Saini met the Manager of M/s. Indigo Cargo (Domestic Airlines), Chennai and requested to return the said parcel. But the Manager refused to return the parcel and asked them to produce supporting documents for the consignment. Thereafter, on the same day, he received an e-mail from the email ID of Sri Ravi Nakhat (Appellant in Appeal No. C/40195/2020). The mail was attached with a sales invoice dated 23.12.2016 issued by M/s. Venus Creations, Kolkata. He submitted the letter along with sales invoice to the Manager of M/s. Indigo Cargo (Do .....

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..... ewelers, T. Nagar, Chennai. They also directed him to wrap the parcel with carbon paper and send it to Sri Gopal through M/s. Monopoly Carriers & Cargo (P) Ltd. He admitted that he had earlier sent three such parcels to Sri Gopal at Kolkata. 1.8 Based on such statement, Sri Pintoo Kumar was called upon to explain his stand. In his statement dated 31.12.2016, he stated that his friend Sri Rishi of Kolkata was in Chennai on 26.12.2016 and on the same day Sri Rishi Nakhat gave a packet to him which had gold inside and told him to give it to one person whom he would tell later. Sri Rishi thereafter left to Tirupati. That as per Rishi‟s instructions he had called Sri D.P. Saini and had handed over the packet to Sri Naveen on 26.12.2016 itself. Statements of Sri Rishi Nakhat and Sri Ravi Nakhat were recorded in Kolkata. 1.9 It was stated by Sri Rishi Nakhat that his counsin Sri Ravi Prakash Nakhat had some liquid funds and wanted to make some investment. He purchased the gold bar from M/s. Kerala Fashion Jewellery, Mylapore, Chennai on 21.12.2016 on credit basis for Rs. 29,29,000/- as per Sale Invoice No. 875 dated 21.12.2016. He paid the amount for this gold bar later only on 13 .....

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..... id the amount through RTGS on 13.1.2017 after receiving payment from his cousin Ravi Nakhat. That when the gold bar was handed over to him, Sri Vimal forgot to give him the bill issued by M/s.Kerala Fashion Jewellery. For this reason the sale invoice issued by him (Venus Creation) was sent through email instead of sending the purchase invoice issued by M/s. Kerala Fashion Jewellery. It was also stated by him that he did not give any security / guarantee while purchasing the gold bar on credit basis. So also that he had not given any acknowledgement for the delivery of the gold bar to him. 1.12 Further investigations relating to the bank accounts of Venus Creation, Kolkata (Sri Rishi Nakhat), it was found that M/s. Venus Creation was having only Rs. 10.25 lakhs as bank balance in their accounts as on 21.12.2016. Over a period of six months, there was credit transaction of more than Rs. 5 lakhs, the second highest transaction being Rs. 3,37,590/-. Suddenly a huge amount of Rs. 20 lakhs was credited into this account on 13.1.2017 by one Sri Sajjan Kumar Jhunjhunwala. This was not supported by any sale or purchase entry in Annexure B of the VAT returns. Another book transaction on 13. .....

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..... t was made by Rishi Nakhat to M/s.Kerala Fashion Jewellery by RTGS. So also the payment made by Ravi Nakhat to Rishi Nakhat was also through RTGS. This being so, the allegation that the transaction is illegal and intended to cover up black money is without any basis. The gold bar has suffered applicable Customs duty when it was initially brought into India from foreign country. So also the view taken by the department that the gold bar is prohibited goods under section 2(33) of the Customs Act, 1962 is erroneous. When M/s.Kerala Fashion Jewellery as well as M/s. Venus Creation have stated that they have sold the gold bar, the department ought to have accepted the invoice produced by Ravi Nakhat. Though the serial number of the gold bar is seen tampered, the onus of such tampering cannot be vested upon the appellants. It is crystal clear that the investigation agency has tried to complicate the simple commercial transaction into illegal one by a story built up by them. The department could have asked M/s.Kerala Fashion Jewellery (supplier of the goods) to produce import documents as they are the importers (Para (x) of appeal grounds). The case law relied by the Commissioner (Appeals .....

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..... y gold bar with tampered serial number. 3.3 The sale price mentioned in the invoice dated 23.12.2016, emailed by Sri Ravi Nakhat does not match with the prevalent market price of gold on the given date. Though, it is contended that on 21.12.2016 vide Invoice No. 875,Sri Rishi Nakhat purchased the gold from M/s.Kerala Fashion Jewellery, the amount quoted is Rs. 29,29,000/- including tax. The rate of the gold prevalent on that day was around Rs. 27,68,090/- only. The only logic of mentioning such higher price in the invoice is for the reason that Sri Rishi Nakhat had to pay heavy premium for getting such an invoice. It defies all logic that anyone would come all the way from Kolkata to Chennai to purchase gold for higher amount of Rs. 1,31,910/- when he could have procured it from Kolkata at the market rate. This shows that the transaction price as per invoice is only an afterthought to cover up the fraud committed by them. The transaction is only a story concocted in an attempt to legalize the illegal black money cash transaction. If they had been successful in transporting the smuggled gold to Kolkata, there would not have been any invoice at all. 3.4 Even though the sale of the .....

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..... of sale of goods made by them within the West Bengal. The sale of gold made by Ravi Nakhat is shown as sale of jewellery of Rs. 27,32,857/- with tax of Rs. 27,058/-. Venus Creation has no license to sell gold bars to individuals. So sale of the gold bar to Ravi Nakhat on 23.12.2016 is shown as sale in form of jewellery in the ledger accounts of Venus Creation. All these would go to show that the claim made by the appellants that the gold was not smuggled and was purchased by proper invoice to be false and untrue. It is also argued by the ld. Counsel that due to tampering of the serial number on the gold bar, it cannot be ascertained whether the gold has suffered Customs duty. This would lead to the conclusion that the gold is smuggled. Further, since the accounting of the same is shown in the ledger accounts of Venus Creation as jewellery, the appellants have no right to claim ownership / redemption of the goods. He prayed that the appeals may be dismissed. 4. Heard both sides and perused the records. 5.1 At the outset, it has to be stated that there is no dispute that the parcel was mis-declared. Although the appellants knew that the parcel contained gold bar, they did not give .....

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..... Creation has sold the gold bar to his cousin Sri Ravi Nakath on 23.12.2016 for Rs. 27,32,857/-. However, this gold bar is seen purchased by Venus Creation from Kerala Fashion Jewellery two days before on 21.12.2016 for Rs. 29,29,000/-. Why should a person in Kolkata take the effort of purchasing gold bar from Chennai for Rs. 29,29,000/- and then sell it after two days at a lesser price of Rs. 27,32,875/-? The market study by the department of the gold rate prevailing on these dates indicates that the price of gold on 21.12.2016 was around Rs. 27,68,090/-. This being so, the logic behind the purchase of gold for a price of Rs. 29,29,000/- from Kerala Fashion Jewellery and the sale of it for a reduced rate to Sri Ravi Nakath is only so as to as include the heavy premium paid to M/s. Kerala Fashion Jewellery for getting the invoice after investigation started. The invoice has to be from Chennai as the gold was booked from Chennai. 5.6 Again, Sri Ravi Nakath stated that he had some liquid funds with him and wanted to make an investment for which he decided to purchase gold from his cousin Sri Rishi. On verification of the accounts of Sri Ravi Nakath, it is seen that he had only Rs. 4 .....

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