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TMI Blog2022 (4) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... claim has been adduced. It is not uncommon in the trade that a particular person or firm enters into a trade with another person or firm for the first time. For the same reason, it cannot be said that the transaction is not involve genuine purchase. Sale of credit also is common in business. What is to be seen that whether the transaction was genuine, factual or only a fabricated one. It is found that money has been paid to M/s Saheli Jewelers though the later date which is again not an uncommon practice in the trade. The transactions of money though completed at a later date cannot be dismissed as fake without further investigation into the facts as to whether the transfer of money has really taken place or not. No such investigation has found to be taken place. Again the transaction is attempted to be discarded citing the Toll report and tower location etc. as these evidences cannot be taken as a conclusive evidence as there are various possibilities as discussed by the learned Adjudicating Authority. No further investigation on this issue has taken place by questioning the persons concerned and the case is attempted to be built up of logical arguments which, is found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 05.08.2017 claimed the ownership of the gold and submitted documents like photocopy of invoices No.5135 dated 21.07.2017 issued by M/s Saheli Gems and Jewelers Private Limited, Bhillai at a value of ₹ 58,50,000/-; Karigar issued slip dated 22.07.2017 issued to Shubh, Kolkata and a copy of letter dated 22.07.2017 on the letterhead of Shri Adinath Jewelers and signed by Noticee No.2. On completion of the investigation, SCN dated 22.01.2018 along with a Corrigendum dated 24.05.2018 was issued to (i) Shri Sonu Jal, Raipur (ii) Shri RajendraSethiya, Raipur (iii) Shri Manoj Kumar Jain, Bhilai (iv) Shri Rajendra Jain, Bhilai proposing confiscation of gold and imposition of penalties. 2. The Additional Commissioner, Patna, vide Order dated 20.11.2018 has absolutely confiscated the seized gold and imposed penalties on various Noticees. On an appeal filed by the Appellants, learned Commissioner (Appeals) vide Order dated 11.04.2019 has set aside the Order-in-Original and allowed the appeals of all the four Noticees. The Department has filed four appeals against the Order-in- Appeal on the following grounds of appeal along with miscellaneous applications for the stay of the operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any duress when he was produced before the Special Judge. (iv) Learned Appellate Authority erred in his findings that the so called ShubhKarigar slip dated 22.07.2017 purchase slip dated 21.01.2017 and the letter dated 22.07.2017 were attached with the Bandi Aawedan Patra ; the Bail order by the Judge of Economic Offences Court does not mention any such documents. (v) The statement of Shri Sonu Jal can be relied upon as Shri Rajendra Sethiya failed to establish that the seized gold bars were legally procured by him; Hon ble Supreme Court held in the case of Surjeet Singh Chabra Vs UOI, 1997 (84) ELT 646 (SC) that a statement made before Customs officers though retracted within six days is an admissible evidence. (vi) There are contradictions in the statements of Shri Rajendra Sethiya and Shri Manoj Kumar Jain; Shri Manoj Kumar Jain could not produce daily stock details from 01.04.2017 to 11.09.2017; though he submitted the same on 12.09.2017; non-production of stock details as and when required indicates that the same has been manipulated; as per the Tower location records, Shri Manoj Kumar Jain was in Bhillai only on the material day; Toll records at Kharoon did not ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995) CHI Essayeur Founder and the entire case of the Department spins around on the confessional statement of Shri Sonu Jal dated 24.07.2017 and the web of evidences gathered by the Department on post seizure investigations made by them. I find that the Department have heavily relied on the evidence that none of the cars claimed to have been used by the appellants number 3 and 4 in transporting the said gold bars from Bhilai to Raipur for sale of the said gold bars to Shri Rajendra Sethiya, the appellant number 2 crossed the Kharun Toll Plaza and thereby the said sale is an afterthought to cover smuggling of gold and also on a text message sent from the mobile number 9827191518 of Shri Rajendra Sethiya to the mobile number 8100881286 of Shri Sonu of Kolkata alleged to be the supplier of the said smuggled gold bars. The Department has also relied upon the statement of Shri Soham Verma, the proprietor of M/s Subh wherein he has stated that he did not know Shri Rajendra Sethiya and Shri MukeshGanatra who is known to Shri Sethiya. The adjudicating authority discarded all the points raised by the appellants and relied upon the evidences cobbled together by the Department to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al had not retracted the statement rendered under section 108 of the Customs Act, 1962, more so, I find that the appellant no-1 in his reply to the show cause notice had mentioned about such retraction and later on sent a copy of the retraction made before the Hon'ble Spl. Judge, Economic Offence Court, Patna vide Para 36 of the impugned order. Moreover, the bail was granted by the Hon'ble Spl. Judge, Economic Offence Court, Patna on 28.07.2017 and the issue of retraction came during bail petition; therefore, the Department cannot take the plea of ignorance of such retraction and ignore the said retraction unless the same is rebutted by corroborative evidence to the contrary. 12. Now the question arises whether the confessional statement of Shri Sonu Jal recorded under Section 108 of the Customs Act, 1962 can be made the main basis and relied upon by the adjudicating authority to order confiscation of the subject goods in the backdrop of retracted statement of Shri Sonu Jal and the evidences put forth by the appellants for licit possession of the said gold bars to dislodge the entire edifice of the case propped up by the Department. It is settled position of law that sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent authorities Le, the Department and the Court. I am, therefore, of the considered opinion that retracted statement of Shri Sonu Jal loses its evidentiary value on the face of retraction coupled with evidence of purchase bill produced about licit possession of the subject gold, which I would discus at the later part of my order. 15. Shri Rajendra Sethiya also lodged his claim over the said gold bars and produced a purchase bill number 5135 dated 21.07.2017 of M/s Saheli Gems Jewellers Pvt. Ltd, a gold dealer of Bhilai. The Department followed the Bhilai trail by initiating thorough investigation at the said gold dealer and the said gold dealer confirmed the sale of 2.0 kg of gold to Shri Rajendra Jain. The Department did not accept the statements of Shri Rajendra Sethiya and Shri Rajendra Jain, one of the Directors of M/s. Saheli Gems Jewelers Pvt. Ltd, and alleged that the entire exercise of the said purchase and sale of gold was an afterthought. It was held that no cars belonging to the directors of the said gold dealer croassed Kharun Toll Plaza and payments for purchase were made after booking of the case of the Department. Further, invoice book serial number was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said two mobile numbers but they never took any initiation to enforce their appearance before the Department in Patna beyond submission of some replies disowning their association with the purported smuggling of the subject gold. But the Department did not take pains to visit the aforesaid two persons having linkage with the mobile numbers alleged to have been used by Shri Sonu to keep in touch with Shri Sonu Jal and Shri Sethiya to confirm their disassociation with the subject goods. Moreover, given the facts that the subject consignment was 21st one, the Department should have carried forward the investigations further to get the details about the correct address, mobile numbers, etc of Shri Sonu for tracing him to know the entire chain of the alleged smugglings of gold. Having not done so, the whole effort of the Department was to heavily rely on the said retracted statement and some loose and unfounded evidence to disprove the authenticity and genuineness of purchase bill no. 5135 dated 21.07.2018 and other documents produced by the appellant. 17. The adjudicating authority in his findings has observed that the import of gold of foreign origin by eligible passengers and var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Mohtesham Mohd. Ismail Vs Special Director, Enforcement Directorate, 2007 (220) ELT 220 (SC) and Vinod Solanki Vs UOI, 2009 (233) ELT 157 (SC) regarding the accessibility retracted statements. We also find that he relied upon the case of S.K. Chaira Vs Commissioner of Customs (Prev.), Mumbai, 2002 (127) ELT 415 (Tri. Mumbai) regarding the scope of provisions of Section 123. He also relied upon Ashok Kumar Agarwal Vs UOI, 2016 (342) ELT 232 (CAL) on the issue of burden of proof. On going through the various case laws cited by the learned Adjudicating Authority and the analysis of facts and circumstances of the cases cited by him, we find that learned Adjudicating Authority has correctly analysed the facts of the case and evaluated the applicable legal provisions and case laws. We find in the instant case, the Department could not adduce any evidence to prove that the gold was of smuggled in nature. Once, Shri Rajendra Sethiya has staked his claim on the impugned gold and has submitted documents to establish the same; it was incumbent upon the Department to disprove the same with the documentary evidence or cogent investigation. 9. We find that the Department attempts to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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