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TMI Blog2022 (9) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... , audited and examined the import consignment and on the ground that show cause notice has not relied upon any of those statements but has been issued on the basis of the documents. Hence the said decision do not appear to squarely cover the present case. There are no reason to differ from the decision in the case of M/s. Anil Gadodia. As the result thereof it is held that statement of Shri Ankit Bansal cannot be read into evidence. For the same reason the statements even of Shri Pankaj Tayal and Shri Vivek Aggarwal as relied upon by the learned Counsel for the appellant are held not to be admissible into evidence. From the Panchnama, it is clearly apparent that three gold bars were seized being packed in the paper having marking KOLHAPUR GOLD LAB by the Customs Preventive Officers from Shri Ankit Bansal having inscription RAND REFINERY LTD, SOUTH AFRICA . This perusal is sufficient to hold that no error has been committed by the department by reasonably believing the seized good to be the gold of foreign origin. Such an inscription has otherwise not been disputed by the appellant even at the stage of making final submissions - Mere production of delivery challan on the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating orders. The facts in brief relevant for the present adjudication are as follows: 2. The Customs Preventive, New Delhi got a specific information about 3 Kgs of smuggled gold to be carried from Delhi to Mathura. The team along with two independent witnesses reach the spot on 23.10.2017, where the person was intercepted. The said person identified himself as Shri Ankit Bansal S/o Late Shri Ajay Kumar Agarwal resident of Mathura. As per his request of being searched at a safer place, he was brought to New Customs House, Near IGIA, New Delhi. On being searched three pieces of yellow metal in the form of bars having the inscription Rand Refinery Ltd, South Africa, 1000g GOLD 9950 FINENESS 2017 were found kept in the pockets of white coloured cloth having black coloured zip wrapped around the waist of said Shri Ankit Bansal. Each gold bar was found packed in paper package bearing marking KOLHAPUR GOLD LAB , Kucha Mahajani, Chandni Chowk, Delhi. Two weighment slips both bearing S.No. 219543 dated 23.10.2017 issued by Purana Dharam Kanta, Sarafa, Charitable Trust, 1168, Kucha Mahajani, Delhi was also found. Shri Ankit Bansal said that he was an employee of M/s. Kalindi T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Preventive) vide Notice No. 02/2017-18 dated 26.03.2018 read with the Corrigendum dated 06.04.2018 extended the period of issuance of show cause notice by another six months in terms of proviso to Section 110 (2) of the Customs Act, 1962. After concluding the investigation department found that Shri Mukul Aggarwal and Shri Ankit Bansal along with Shri Pankaj Tayal have deliberately concerned themselves in illicit transaction of purchase/sale of smuggled gold and were also observed to be liable for penal action under Section 112 and 117 of the Customs Act, 1962. Accordingly, the aforesaid Show Cause Notice No. 12620 dated 17.09.2018 was served upon three of them proposing the confiscation of the seized gold and the imposition of penalty upon three of them under Section 112(b)(i) and 117 of the Customs Act, 1962. The said proposal was initially confirmed vide Order-in- Original No. 27/2019 dated 25.09.2019. The appeal thereof has been rejected vide Order-in-Appeal No. 1256-1257/2020-21 dated 13.01.2021. Being aggrieved, the appellant is before this Tribunal. 5. We have heard Shri Aakarsh Srivastava, learned Advocate for the appellants and Shri Nagender Yadav, learned Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the gold in question with Shri Ankit Bansal. 6.2 Learned Counsel also impressed upon that even the details of Shri Prabhas Karigar Shop who added impurities to the gold bars so as to reduce the available purity to 995 instead of 999 were also given to the department. But no investigation had been conducted. This lacuna also is sufficient to support the appellant s case. Learned Counsel has relied upon the decision of CESTAT, Allahabad in the case of Shri Neeraj Agarwal and Shri Bipat Bind Vs. Commissioner of Customs (Preventive), Lucknow reported as 2019 (9) TMI 334 to impress upon that since the purity of intercepted gold was less than the purity of gold of foreign origin, the intercepted gold cannot be held liable to confiscation on the allegations of smuggling. Another decision of M/s. Anil Gadodia vs. C.C, New Delhi (Prev.) reported as 2020 (4) TMI 82 CESTAT, New Delhi has also relied upon for impressing upon non- admissibility of the statement which have not tested under Section 138 of the Customs Act. The order under challenge is accordingly prayed to be set aside and appeal to be allowed. 7. While rebutting the submissions, learned DR has heavily relied upon the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said reliance has heavily been objected for want of non-compliance of Section 138B of Customs Act, 1962. Accordingly, foremost it is necessary to check as to whether the compliance of 138 B of the Customs Act, 1962 was mandatory and that as to whether the non-compliance thereof amounts to no evidence on record to disprove the allegations of show cause notice. With respect to the first question Section 138B of Customs Act is reproduced here. It reads as follows: 138B. Relevancy of statements under certain circumstances: (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) When the person who made the statement is exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... origin. Such an inscription has otherwise not been disputed by the appellant even at the stage of making final submissions before us. The report of jewellery appraiser which again has nowhere been denied sufficiently proves the weight, purity, serial number and even the lot number of these gold bars. Though learned Counsel has mentioned that the said gold bars were given to Shri Ankit Bansal against a delivery challan and that the same has been suppressed in the Panchnama but perusal of Panchnama shows that all other things as that of Aadhar Card, Voter ID, Driving license of Shri Ankit Bansal, wrist watch (even the brand thereof has also been mentioned), a gold chain, gold ring, currency with its denominations of Rs.16,595/- and some coins have meticulously been recorded as the articles recovered from the personal search of Shri Ankit Bansal. Had he been carrying the delivery challan or any diary, as asserted, there seems no reason with the investigating/searching officers to not to mention the same. Mere production of delivery challan on the record at subsequent stage is highly insufficient to prove that the said delivery challan was in possession of Shri Ankit Bansal at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li Karigar namely Prabhas in presene of said Shri Mukul Agarwal to contain the impurities in the form of ruthenium 2 gms in it so as to get reduce the purity of the gold to 9950. 11.1 In the letter dated 22.11.2017 it is found mentioned that 2994.220 gms of gold of 995 purity from appellant stock was given to said Shri Prabhas Karigar who returned 2998.750 gms of gold in form of 3 bars having mixed with the aforesaid impurity. 11.2 The procedure adopted by Shri Prabhas for adding that impurity has also been detailed in the said letter mentioning that the gold of appellant was got melted by Shri Prabhas who after mixing the other melted metals into it put the melted liquid into a sancha/pharma and thereafter inscribed RAND REFINERY LTD, SOUTH AFRICA upon it. And to get checked the purity of the gold received after the said process that the same was sent to Delhi through Shri Ankit Bansal. 12. The purity of seized gold i.e. 995 (i.e., 99.5%) is highly been impressed upon by the appellant to have been corroborated even by the departmental appraiser. It is also heavily been impressed upon, that the gold of foreign origin always has purity of 999 (i.e., 99.9%). First of all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of foreign origin and certain serial/lot numbers that the same was handed over to the appellant. In the given circumstances, the entry to and from Shri Prabhas of the gold should not have found mentioned in the stock register. This observation corroborates the observed manipulation of defence by the appellant. The substantial delay in submitting defence is definitely another strong ground to support the observed mala fide on part of the appellant. Three of these letters are miserably silent to justify as to the why gold bars were inscribed with the name of foreign origin i.e. RAND REFINERY LTD, SOUTH AFRICA . 14. Another major emphasis is upon the fact that no extra gold was found from the appellant premises. But as discussed above that the appellant gained sufficient time to manipulate the defence, it was not difficult for him to shift such gold from his premises as was illegally/unauthorizely obtained/procured by the appellant. The seizure of gold was of 23.10.2017 where as search of his premises was 09.11.2017. It is coming apparent from the show cause notice that gold bars were scratched by the hammering process to know the serial numbers inscriber there upon. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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