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TMI Blog2022 (8) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... d is well established upon documents. There is nothing on-record from the investigating authority to deny the stock of pure gold available with Agarwal Gold House as on 01.04.2013 and as such, there is no evidence on-record to doubt that the seized gold was not from the said stock and subsequent purchases of Agarwal Gold House, which were handed over to Mohanlal @ Ram by Vikash Agarwal. The only question, thus, remains whether the appellants, specially Sri Vikash Agarwal, Proprietor of M/s. Agarwal Gold House has been able to discharge his burden of proof u/s. 123 of the Customs Act, 1962 in the facts of the present case. There is nothing on-record from the investigating and/or adjudicating authority to controvert the evidences produced by the Appellants in the present case. In such a circumstance, the order of confiscation of the seized gold weighing 1958.240 gms. under section 111(d) of the Customs Act, 1962 only on suspicion and presumption, is bad in law and cannot sustain and hence, we set aside the same with consequential relief to the claimant/ Appellant Sri Vikash Agarwal, Proprietor of M/s. Agrawal Gold House - penalties imposed upon the Appellants under section 112 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 issued by HDFC Bank Limited in favour of M/s. Ambika Jewellers recognizing their sale of 3 Kgs. of gold to M/s. Ambika Jewellers. Disputing the letter dated 12.06.2014 issued by the HDFC Bank, Patna to the Intelligence Officer, DRI, the Ld. Advocate on behalf of the Appellants referred to the letter dated 21.10.2014 under Ref. No. HDFC/BO/MISC/2014-15/11 issued by the HDFC Bank, Bullion Operation, Mumbai to contend that sale of 3 Kgs gold by HDFC Bank to Ambika Jewellers under Invoice dated 22.04.2013 has been confirmed by the HDFC Bank. He further referred to the statement dated 07.4.2014 of Shri Premnath Gupta, Proprietor of Ambika Jewellers as recorded by the Deputy Director, DRI, Patna wherein u/s. 108 of the Customs Act, 1962, said proprietor of Ambika Jewellers had confirmed the sale of 0.7746 kgs of gold in favour of Agarwal Gold House. 5. It is also submitted that Agarwal Gold House had a further purchase of 1000 gms. of pure gold from M/s. Harimanthan Jewellery House Pvt. Ltd. under purchase Invoice No. 057 dated 15.02.2014. On inquiry by DRI, Sri Davender Kumar, Director of M/s. Harimanthan Jewellery House Pvt. Ltd., Rani Bagh, Delhi vide statement dated 21.05.2014 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by bank in favour of Ambika Jewellers. It is submitted that since the burden u/s. 123 of the Customs Act, 1962 has been wholly discharged and the department has failed to contradict the same upon evidence, the order of confiscation of seized gold and imposition of penalties upon the appellants should be quashed. 8. Per contra, Ld. Authorized Representative appearing on behalf of the respondents submitted that Sri Mohanlal @ Ram in his statement dated 27.02.2014 after apprehension by DRI, Patna had admitted that the seized gold was smuggled from Nepal and Vikash Agarwal had handed him over the same and directed to go to Kanpur. Further, Sri Vikash Agarwal in his statement dated 28.02.2014 had stated that the seized gold was purchased from Ambika Jewellers of Patna and Jalan Co. of Kolkata, but on investigation, it was found that there was no such sale by Jalan Co. of Kolkata in favour of Vikash Agarwal. Later, he came up with the Invoice of Harimanthan Jewellery House Pvt. Ltd. of Delhi which DRI disbelieved since payment was made through RTGS after the date of seizure though the purchase invoice was carrying details of an account payee cheque as the mode of transaction. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me upon any evidence leading to confiscation of the same under section 111 of the Customs Act, 1962 and consequential imposition of penalties upon the various Appellants. 12. We find that it is not in dispute that the Appellant Sri Vikash Agarwal, Proprietor of M/s. Agarwal Gold House is the only claimant and owner of the seized gold. Even Appellant Sri Mohanlal @ Ram has stated the same fact to DRI, Patna on 27.02.2014. During investigation at Agarwal Gold House on 28.02.2014 i.e. immediately after the seizure, the DRI did not find anything contraband and/or incriminating in nature. The Panchnama dated 28.02.2014 shows that Ledger Account and Books of Account of Agarwal Gold House were seized on 28.02.2014 only. Sri Vikash Agarwal came forward and in his statement dated 28.02.2014 claimed ownership of the seized goods. He disclosed his opening stock of gold as on 01.04.2013 and also stated about his purchases of pure gold during 2013-2014. However, he stated to have a purchase of 1000 gms. of pure gold from Jalan Co. of Kolkata, which was later changed as a purchase during February, 2014 from M/s. Harimanthan Jewellery House Pvt. Ltd. of Delhi. In support of such purchase, Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween Agarwal Gold House and Harimanthan Jewellery House Pvt. Ltd. under Invoice dated 15.02.2014 for purchase/ sale of 1000 gms. of pure gold is well established upon documents. 13. We further find that the authorities below have seriously erred by not taking cognizance of letter dated 21.10.2014 under Ref. No. HDFC/BO/MISC/2014-15/11 issued by the HDFC Bank, Bullion Operation, Mumbai acknowledging their sale of 3 kgs. of pure gold in favour of M/s. Ambika Jewellers of Patna. It is the case of the Appellant Ambika Jewellers that they had sold 774.600 gms. of gold to Agarwal Gold House under their Invoice dated 22.04.2013 out of such stock of pure gold purchased from HDFC Bank and to negate such fact, the authorities below proceeded on the basis of letter dated 12.06.2014 of HDFC Bank, Patna ignoring letter dated 21.10.2014 under Ref. No. HDFC/BO/MISC/2014-15/11 issued by the HDFC Bank, Bullion Operation, Mumbai, though admittedly the same was available before the authorities below for consideration. This is a serious mistake on facts. Had cognizance of letter dated 21.10.2014 under Ref. No. HDFC/BO/MISC/2014-15/11 issued by the HDFC Bank, Bullion Operation, Mumbai been taken, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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