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TMI Blog2022 (3) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... andbag. Mr. Soni was further asked if he was having any documents regarding the legal possession of gold to which he replied in negative. Thereafter, the officers detrained him and came with Mr. Soni to DRI office at Varanasi. In the personal search taken of Mr. Soni, the following was found: (i) his Aadhar Card-6577-1949-7383 (ii) Pan Card- BWOPS6563H (iii) Mobile Phone (LET Smart Phone-IMEI Number 862539030088425/ 862539030088433) with mobile SIM-7003805421/9007581279 & (iv) a sum of Rs. 1240/- were recovered, (v) from cloth waist belt, two rectangular pieces of yellow metal were recovered which appeared to be of gold (vi) from purple colour handbag (3) yellow metal rectangular pieces plus one cut piece. Further, on being asked if he has any document as to the licit possession of the gold, Mr. Sanjay Soni stated that he is not having any document. Thereafter, the Officers called the Government approved valuer Mr. Girdhar Gopal, who submitted his report as on 11.05.2018, as follows- Sl. No. Description Weight (grams) (INR Value @ 32,000/- per 10 gram 1. Gold Bar(RAND Refinery) 99.50 998.600 31,95,520/- 2. Gold Bar 99.50 998.700 31,95,840/- 3. Gold Bar 99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soni further stated that his main business was related to imitation jewellery but during the last three months, he has carried gold from Kolkata to Kanpur. They have also provided the Mobile Nos. of Mr. Sandeep Gupta(9935019600 & 8840793240 & Mr. Vishwanath Soni at Kanpur (9839362909). He further stated that during the last three months Mr. Ashok Soni of Kolkata used to send gold through him for delivery at Kanpur, by giving directions on whatsapp. He has delivered gold to Kanpur 7-8 times in the past. The officers retrieved the whatsapp message received by Sanjay Soni from Ashok Soni, where it was mentioned as '2.2 chacha & 2 sandip'. The officers also found photograph of Mr. Ashok Soni and visiting card of M/s. Lala Raj Kishore & Sons, Kanpur having details of mobile phone numbers of Mr. Sandeep Gupta, saved in the phone of Mr. Sanjay Soni. The officers arrested Mr. Sanjay Soni as it appeared he had committed offence punishable under Section 135 of the Customs Act, read with the provisions of Section 104 of the Act, with approval of the Competent Authority and thereafter he was produced before the Hon'ble Spl. CJM, Economic Offence, Varanasi on 12.05.2018, who remanded him to jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of Sanjay Soni was searched on 18.05.2018 at Sapuipara, Howrah, but nothing incriminating was recovered. Mr. Mahendra Bhama brother of Sanjay Soni who was present during search stated that he was aware regarding arrest of his brother Sanjay Soni by DRI-Varanasi. Further, Summons were issued by DRI for appearance of Mr. Ashok Soni & Mr. Abhishek Soni, but the DRI received the usual reply that as they are out of Kolkata, they shall attend on their return. But both of them did not appear before the DRI. Thus it appeared that they were deliberately avoiding the investigation. Thereafter, Revenue again issued Summons dated 29.06.2018 alongwith letter of same date, address separately to Mr. Ashok Soni & Mr. Abhishek Soni, intimating them regarding their complicity in the alleged smuggling of foreign origin gold based on the seizure of gold from Mr. Sanjay Soni and his statement recorded by the officers. They were also asked/directed on Summons to appear before the DRI-Varanasi on 5.07.2018 for the explanation and recording of statement. However, both of them neither filed any written reply nor appeared before the DRI at Varanasi. 12. Mr. Sandeep Gupta appeared before DRI-Varanasi on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Soni from Kolkata to Kanpur by train, from the Website IRCTC. It further appeared that Mr. Abhishek Soni & Ashok Soni were the mastermind and Mr. Sandeep Gupta and Sri Vishwanath Soni also indulged themselves in the alleged smuggling/receipt of smuggled gold. Accordingly, SCN datd 5th July 2018 was issued on all the aforementioned five persons proposing confiscation of seized gold bars weighing 5194.200 gms valued at Rs. 1,66,21,440 under Section 111 (b) & (d) of the Customs Act alongwith seizure of the waist belt and handbag used for carrying. Further penalty was proposed under Section 112 (a) & (b) on all the persons for their alleged indulgence/involvement in smuggling of gold, directing show cause answerable before the Additional/ Joint Commissioner of Customs, Lucknow. 14. All the noticees/appellants contested the SCN. 15. Mr. Vishwanath Soni in his reply inter-alia urged that the show-cause notice is vague, lacks any specific allegation. The allegations in the SCN are only based on the statement of Mr. Sanjay Soni which is not reliable as the same have been taken while he was in detention by the Customs officers. Subsequently, Mr. Sanjay Soni was arrested and was produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the allegations of Revenue. The statement of co-accused is not sufficient to implicate this noticee. It was also urged that the noticee is a poor artisan of old age, living in rented accommodation and having a monthly income of about 12,000 per month only. He has been a gold artisan/Goldsmith and presently due to his old age is unable to manufacture the gold ornaments himself. It was further urged that this appellant have not violated any of the provisions of Section 111 or any other provisions of the Customs Law, and accordingly, no penalty is imposable on him under Section 112 of the Customs Act. 15.3. It was also urged that the relied upon documents given to the appellant in the form of DVD are illegible and accordingly he prayed for hard copy of the RUD's-documents which was never supplied. 15.4 It was also urged that the foreign origin of the seized gold is not proved. Admittedly, out of the 5 gold bars of one Kg each, seized from Mr. Sanjay Soni, there is no foreign marking on four gold bars. Only on one gold bar there is marking - 'rand refinery'. Admittedly, as per statement of Mr. Sanjay Soni he has received the gold bars at Kolkata from Mr. Abhishek Soni and Mr. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken his name vaguely and he has got no manner of concern with the seized gold. That there is no evidence that this appellant had stuck any purchase deal for the gold with Mr. Ashok Soni or Abhishek Soni and/or have remitted purchase consideration for the same. 16.1. Under the facts and circumstances, no case of any alleged violation of any of the provisions under Section 111 or any other section of the Customs Act is made out against this noticee. Accordingly, the proposed penalty under Section 112 is fit to be dropped. As regards the allegation of foreign origin of gold, the same is also disputed, as disputed by Mr. Vishwanath Soni. Further, as this appellant have not claimed the seized gold in question, there is no onus on him under the provisions of Section 123 of the Customs Act. He further stated that the statement of Mr. Sanjay Soni is vague and not reliable evidence, in support of the allegations of Revenue. 16.2. He further urged that the foreign origin of the gold is not established. Only on one of the gold bars there is foreign marking- 'rand refinery'. On the other pieces of gold recovered from Mr. Sanjay Sony there is no foreign marking, and as such there cannot be an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, nor any case of violation of the provisions of the Customs Act as alleged. There is no case of imposing penalty on these appellants, is made out. It is further urged that the show-cause notice issued by the Additional Director of DRI, is without jurisdiction, as have been held by Hon'ble Calcutta High Court in the case of Navneet Kumar vs. Union of India W.P. Nos, 3336(W) of 2018. "Additional Director of Directorate of Revenue Intelligence is not entitled to invoke Section 124 of the Customs Act, 1962. The impugned show-cause notices are quashed as being without jurisdiction". The appellant had also reserved the right to file supplementary or additional submissions, after receipt of the relied upon documents. They have also prayed for cross-examination of noticee No. 4-Mr. Vishwanath Soni, noticee No. 5-Mr. Sanjeev Gupta, but the same was not granted for no ostensible reason by the adjudicating authority. 18. The SCN was adjudicated by the Additional Commissioner, Customs (Preventive), Lucknow vide order-in-original dated 21st February, 2019 confirming the charges in the SCN. The gold seized was ordered to be confiscated in absolute terms with no option for redemption, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused Mr. Sanjay Soni is bad and fit to be set-aside. The WhatsApp message recovered from the phone of Mr. Sanjay Soni is not reliable as the same does not satisfy the prerequisite prescribed under Section 138C of the Customs Act, as regard electronic evidence. These appellants have replied to all the summons issued by the Revenue. Thus, no case of non-cooperation with Revenue in the investigation is made out. The court-below have arbitrarily imposed and upheld the penalty which is not attracted under the provisions of Section 112 of the Act, as these persons have not violated any of the provisions of Section 111. The allegations of Revenue are bald and unsubstantiated. As regards the reliability of electronic evidence, relying on the ruling of this Tribunal in S.N. Agro Tech 2018 361 ELT 761, it is urged that, evidence in form of computer printouts, etc. recovered during the course of investigation may be admitted only subject to satisfaction of conditions prescribed in subsection (2) of section 138C of the Act. In absence of certificate, as required under this Section, such electronic documents cannot be relied upon for confirmation of the allegations in the show cause notice. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant have not entered into any deal with the other co-accused for receiving smuggled gold. The recovered WhatsApp message from the phone of Mr. Sanjay Soni is not reliable piece of evidence as the same is both vague and also does not satisfy the prerequisite as prescribed under section 138C of the Customs Act. Moreover, under the facts and circumstances, this appellant have not done any act of omission or commission attracting any of the provisions of Section 111 of the Customs Act, nor he has handled the seized gold in any manner. Thus, in any view of the matter the penalty imposed under Section 112 is bad and fit to be set-aside. Evidently, there is no incriminating evidence against this appellant. 26. The Learned Authorised Representative for Revenue opposes the Appeals of the aforementioned appellants, and relies on the impugned order. Further, in support of the Revenue Appeal against Mr. Sanjay Soni with respect to relief granted by Commissioner (Appeals)-holding that the seized gold is not liable for absolute confiscation and the same can be released on payment of redemption fine and duty. He inter alia urges that Mr. Sanjay Soni himself have stated that the seized gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... setting aside the order of the Commissioner (Appeals) on this issue and restoring the order of absolute confiscation. 28. Having considered the rival contentions, I record my findings as follows: - Regarding Mr. Ashok Soni, Mr. Abhishek Soni & Mr. Sandeep Gupta - 28.1 I find that other than the incriminating statement of Mr. Sanjay Soni there is no other worthwhile evidence against these appellants. These appellants and Mr. Vishwanath Soni have given cogent explanation, they being related and known to each other and being in the same line of business had been talking regarding rates etc. with each other. Thus, the call details records relied upon by the Revenue does not support the allegations of Revenue, in absence of transcription of the conversation between these persons. So far the WhatsApp message is concerned, which is retrieved from the phone of Mr. Sanjay Soni, alleged to have been received from Mr. Ashok Soni, the same is not reliable for non-compliance of the provisions of Section 138C of the Customs Act. Further, the message is also vague and incomplete. I further find that these appellants have not violated any of the provisions of the Customs Act including Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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