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TMI Blog2021 (9) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... y Junction)on 17.01.2019 at about 16 hours; Shri Girdhar Gopal, Government approved valuer, on being called measured and valued the two pieces of gold bars 1999.810 gm (total wt.) to be valued at Rs. 65,59,377. Thereafter, the Customs Officers took the said Shri Kishan Kumar Dhuria with them alongwith the recovered two pieces of gold bars into their possession underSupratnama dated 17.01.2019, from GRP Police, and took him alongwith the recovered gold bars to the customs office at Varanasi for further action; the proceedings were witnessed by two independent witnesses. 2. Statement of Shri Kishan Kumar Dhuria was recorded under Section 108 of the Customs Act, 1962,on 18.01.2019 wherein he inter-alia stated that he was working for Shri Deepu Mishra alias Shri Sarvendra Kumar Mishra (appellant) of Allahabad; he had departed from Allahabad on 15.01.2019 by Kalka Mail to Kolkata with Rs. 64.42 lakh, which was given by Shri Deepu Mishra, for purchasing and bringing of two gold bars totalling two kgs approximately; on reaching Kolkata, he stayed in Dropadi Dharamsala, where one person came to meet him; after speaking to Shri Deepu Mishra over his mobile phone, and on his direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is covered by proper GST invoice dated 15.01.2019; his employee Shri Kishan Kumar Dhuria was accompanied with Ram Bol another employee of his firm, and was carrying gold of Indian origin alongwith invoice for transit to Allahabad by Kalka Mail, Train No 12311. It appeared to the Revenue that only two kg of gold bars was purchased from M/s Jalan Jewellers, Kolkata vide GST invoice dated 15.01.2019; his other employee Shri Ram Bol was carrying the invoice and the gold bars; the said invoice revealed that M/s Jalan Jewellers sold 2000 gm gold bar to M/s Mishra Jewellers; two pieces of gold bars (totally weighing 2 kg) seized from the possession of Shri Kishan Kumar Dhuria was in addition to the gold bar being carried by Shri Ram Bol; Shri Kishan Kumar Dhuria has reached Kolkata on 16.01.2019 and collected the gold bars, whereas the Invoice No. 01230 was issued on 15.01.2019 when Shri Kishan Kumar Dhuria was at Allahabad. Therefore, the gold recovered from the possession of Shri Dhuria is not the same gold as sold vide Invoice No. 01230 issued by M/s Jalan Jewellers; it appeared, three pieces of gold bars were being carried jointly by Shri Kishan Kumar Dhuria and Shri Ram Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , absolutely confiscated seized gold valued at Rs. 65,59,377/- under Section 111(b) and (d) of the Customs Act, 1962 and imposed penalty on the appellants under Section 112(b) of the Act. Appeals filed by the appellants were dismissed by Learned Commissioner (Appeals) vide common impugned order-in-appeal. 6. Commissioner (Appeals) held that as per the valuation report of the approved valuer, the purity of gold is 999.9%; Shri Kishan Kumar Dhuria was not having any documents for the licit procurement of gold; Shri Kishan Kumar Dhuria stated in his statement recorded under Section 108 of the Customs Act, 1962, that he had gone to Kolkata with cash of Rs. 64.42 lakhs to procure the gold and have also disclosed other trips in the recent past for procurement of gold, on payment of cash and have further stated that no invoice was given to him on delivery of gold under seizure, and further stated that the gold seized by GRP does not have foreign marking, as such markings are erased by the traders at Kolkata to conceal the foreign origin of such gold; on the basis of aforementioned premises, the Customs have formed reasonable belief that the gold was of smuggled nature; therefore, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess was adopted by the valuer to check the purity of Gold; appellants' had made several requests to the department for the test of Purity of Gold, by Government Laboratory. 8. Learned Advocate for the appellants submits that Panchnama was drawn at the office of the customs preventive Varanasi, wherein at Page no. 1 it was stated that Shri Girdhar Gopal approved valuer was called by the GRP Police, and in the supurdginama, the GRP inspector states that the approved valuer Shri Girdhar Gopal came along with customs officers; this contradiction surely creates an unpleasant situation; point to be noted is that Panch witnesses are Shri Shyam Kumar a labourer and Shri Rakesh Patel driver of the Customs department. He submits that in the case of Ramcharan Soni Vs. Commissioner of Customs (Prev.) Patna reported in 2001 (136) ELT 811 (Tri. Kolkata), this Tribunal held that as regards assay of the gold in question, it is noticed that the same was got done by Shri V.K. Barnwal, a Goldsmith, by touch stone method; Caratage of the gold indicated by him is only approximation and cannot be said to be a definite finding; in a matter where smuggled nature and foreign origin are attributed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 1000 gm each. The department had issued summons to the Proprietor of M/s. Jalan Jewellers to appear with all relevant papers i.e. sale register, purchase register, stock register, sales bill, ITR, Bank statement & AADHAR; all relevant papers were sent through his younger brother; however, the department denied to receive the same from his brother; they again sent all relevant papers by post; the entry of invoice No. GST/01230/18-19 dated 15.01.2019, is clearly mentioned in the register; even the details of payment through banking channel are also mentioned. He submits that Hon'ble Patna High Court, in the case of CCCE & S.T., Patna Vs. Gopal Prasad reported in 2020 (371) ELT 243 (Pat.) held that- the Tribunal has given a categorical finding that the respondent No. 1 herein had produced retail invoices of M/s Bhawana International, in order to substantiate his claim that he had purchased two pieces of gold bars from Chandni Chowk, Delhi on 14.4.2014, and on his instructions his brother Chandreshwar Prasad Sah (respondent No. 3) had handed over the gold pieces to Sujeet Kumar (respondent No. 2) for carrying it to Patna to hand it over to Mahavir Prasad, to make gold ornaments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue of the provisions contained in Section 180 to the Customs authorities, there is no fresh seizure under the Customs Act. It would, therefore, follow that, having regard to the circumstances in which the gold came into the possession of the Customs authorities, in the terms of Section 178A, which requires a seizure under the Act, were not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the gold was not smuggled, on the accused. 13. Learned Authorised Representative Shri B. K. Jain appearing for the Revenue supports the impugned order. 14. Having considered the facts and circumstances, we find that admittedly this is a case of town seizure wherein, the impugned gold was intercepted, initially taken possession of by the officer of GRP and then handed over to the Customs. Admittedly, the gold did not have any tell-tale foreign markings and it was merely accused that the markings were removed to hoodwink investigation. The place where seizure took place is not Customs Area. Hon'ble Supreme Court in the case of Gian Chand & Ors( Supra), wherein in case of seizure by the Police and thereafter the possession was shifted to the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It does not constitute reasonable belief to seize the goods under Section 123 of the Customs Act, 1962. We find Tribunal in the case of Ram Nath Sah 2007 (219) ELT 546 (Tri - Kol)held that I find that the seizure report does not indicate any foreign marking on the gold. The purity is also not of 999 generally found with the foreign origin gold. The seizure report also does not indicate the individual weight of the gold pieces. As such, this is a case where the benefit of doubt requires to be extended to the appellants as there is no conclusive proof that the gold is of foreign origin and smuggled. 17. We further find that one of the appellants, Shri Sarvendra Kumar Mishra claimed the ownership of impugned gold by letter dated 22-1-2019 and submitted a GST invoice dated 15-01-2019 issued by M/s Jalan Jewellers, Kolkata, in support of licit purchase; payment of Rs. 13,00,000 has been made; Rs. 40,92,946 was adjusted by sale of Gold of 1293.190 gm to M/s Jalan Jewellers, Kolkata and balance of Rs. 9,47,054 was paid on 12-02-2020. Such invoice produced has not been found to be untrue or false by the Revenue. The adjudicating authority has given a finding that the Proprietor o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the Gold seized is of 2Kg. evidence produced by the appellants pertained to one piece of gold, whereas Shri Dhuria was carrying 2 pieces totally weighing around 2kg; Shri Dhuria and Shri Ram Bol together were carrying more than two pieces. The appellant Shri Sarvendra Kumar Mishra, who claimed the ownership of impugned Gold, submitted vide letter dated 22.01.2019 that Shri Dhuria was accompanied by his another employee i.e. Shri Ram Bol and that while Shri Dhuria carried the Gold, Shri Ram Bol was having documents. Shri Ram Bol was not examined by the officers so as to contradict the claim of the appellants, claiming that he did not present himself before the officers. Considering the seriousness of the charge, it was incumbent upon the department to falsify the claim of the appellants. Shri Sarvendra Kumar Mishra was also not examined claiming that he did not turn up on summons. Examination of these two was crucial to the investigation. Under such circumstances the conclusions drawn by the department are mere conjectures and an allegation of grave nature such as smuggling cannot be established on the basis of conclusions drawn on insufficient investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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