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TMI Blog2022 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... at the seized gold 20.643 kgs. has been found in the cloth bag brought by Sh. Pankaj Kumar Singh. Thus, it is held that the gold was actually in possession of Sh. Pankaj Kumar Singh who was present in the shop. Thus, although this appellant was facilitating the sale of gold, the gold was in defacto and de-jure possession of Sh. Pankaj Kumar Singh on behalf of his master Sh. Amit Goel. The subsequent change of statement of Sh. Pankaj Kumar Singh does not inspire confidence, has evidently been made in order to save his employer - Sh. Amit Goel from penal consequences. Further, the panch witness Sh. Yogesh - President of Bullion Association has also supported the contention of this appellant, that he is a broker dealing in bullion on consignment basis for brokerage. These facts are also corroborated with the Income Tax record of this appellant wherein he has declared annual income during the financial year 2014-15 to 2017-18 in the range of Rs. 3.9 to Rs. 9 lakhs. Admittedly, Sh. Amit Goel is a wealthy person of substantial means, which also support the contention of this appellant. The submission of ld. Counsel for the appellant that investigation does not adduce any evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Shop No. 7 where the appellant and Sh. Pankaj Kumar Singh, an employee of Sh. Amit Goel (consignor) were present. On enquiry Sh. Rajesh Kumar could not produce any document for legal possession of the gold and informed that the said gold was received from Sh. Amit Goel, Director of M/s Pace Commodity Brokers Pvt. Ltd., through his employee Sh. Pankaj Kumar Singh. During search in Shop No. 8 located adjacent to Shop No. 7, currency of total face value of Rs.6,44,00,000/- was found. The appellant informed that this was sale proceeds of smuggled gold sold on that day and also sold during previous week. On a reasonable belief that the recovered gold was smuggled into India and that the said cash amount was sale proceeds of smuggled gold, the same appeared to be liable for confiscation under Section 111 of the Customs Act, 1962. Officers of DRI seized the same under the provisions of section 110 of the Act vide panchnama dated 14.10.2016. 4. The appellant in his statement dt. 15.10.2016 recorded under Section 108 of the Act, inter alia stated that- i. He was a broker in sale-purchase of gold, and he earns commission of Rs. 800-1000 per kg. of gold. ii. He mainly dealt in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss asset classes and disseminating his research results to his clients. ii) he knew the appellant for last 10 months and had been interacting with him to ascertain the price information of bullion market and had never had any financial dealing with the appellant. iii) he had nothing to do with the seized gold and the currency, and why did the appellant take his name, is not known to him. 8. From the call detail records it appeared to Revenue that Sh. Pankaj Kumar Singh was present in the office of Sh. Amit Goel between 9 hrs. to 11 hrs. on 14.10.2016 and thereafter he went to Kucha Mahajni and reached there by 13 hrs. 9. Sh. Manoj Kumar and Sh. Ajay Mahto, both employees of the appellant, who were present in the shop at the time of seizure of gold and Indian currency notes, in their respective voluntary statements dated 15.10.2016, recorded under Section 108 of the Customs Act, 1962, stated, inter alia, that they were working at Sh. Rajesh Kumar s shop; that appellant purchased foreign marked gold in heavy quantity from different persons and sold in retail to other jewellers; that sometimes, many retailers of gold came to the shop of Sh. Rajesh Kumar i.e. Shop No. 7 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Goel had conversed with Sh. Rajesh Kumar the appellant six times from his mobile numbers. The call detail recording have been obtained by Revenue from the respective telecom operator, with certificate under Section 65B of the Indian Evidence Act, 1972. 12. Pursuant to investigation, show cause notice dated 12.04.2017 was issued to the appellant alongwith Sh. Amit Goel, Sh. Pankaj Kumar Singh and Sh. Santosh Kumar Singh, calling upon them to show cause individually as to why the seized gold weighing 20.643 kg. (of gold bars) having market value of Rs. 6,46,57,189/- seized from the shop premises of this appellant be not confiscated under the provisions of Sections 111(d), 111(o) and 111(p) of the Act with further proposal to confiscated the seized Indian currency of Rs. 6,43,74,000/- being sale proceed of the gold under Section 121 of the Customs Act with proposal to impose penalty individually on all the noticees under Section 112 of the Customs Act. 13. In the course of adjudication proceedings, this appellant had sought cross examination of Sh. Amit Goel and Sh. Atul Goel (brother of Sh. Amit Goel). Sh. Amit Goel had appeared for cross examination on 21.03.2017, in answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold was sent by Sh. Amit Goel was false to save yourselves. In answer the appellant stated that no, whatever I said in regard to Sh. Amit Goel is correct. Further, during his cross examination on 03.05.2017, the appellant in answer to question No. 40 as to how much sale and purchase of gold do you do in a day. The appellant in answer stated that in a day, I transact approximately between 3 to 8 kg. On some days it can exceed 20 kgs. His business is only of brokerage. During his cross examination Sh. Amit Goel admitted the fact that he knew Sh. Pankaj Kumar Singh and Sh. Santosh Kumar who are working in his office as an employee for the last 8-10 years. He also stated that he is Research Analyst and Chief Investment Strategist of the company M/s Pace Stock Broking Services Pvt. Ltd., and have been working since 1995. 16. Ld. Counsel for the appellant further submits that from the statement of Sh. Amit Goel, it is evident that he is highly educated and technically well equipped. Thus, he was having several channels of information and very unlikely that he was frequently calling this appellant to know the market rate of gold etc. Admittedly, this appellant works as a broker in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marking are also put in local sanchas at Delhi to increase the saleability/ marketability of the gold. In the facts and circumstances, the gold seized from the appellants is not prohibited goods. Further, gold is imported into India freely by the authorised importers and also by Indian citizen returning from abroad on payment of duty. 17. It is also urged that, the Adjudicating Authority have held in para 23.3.6 of the order-in-original, that although gold was recovered from the premises of this appellant, the de-jure possession of the gold is proved to be that of Sh. Amit Goel, which was brought to this appellant by Sh. Pankaj Kumar Singh/ Sh. Santosh Kumar, both employees of Sh. Amit Goel. It is further urged that neither this appellant nor Sh. Amit Goel have applied for release of the gold in their favour, as both of them had denied the ownership of the gold. Further, in the cross-examination, this appellant have stated that at the end of business hours, if any gold is not sold on the same day then the seller/ consignor takes back the unsold gold. This fact is also evident from the fact that Sh. Pankaj Kumar Singh was sitting at the shop of Sh. Rajesh Kumar appellant on 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TI Act, 2005. 22. Having considered the rival contentions and on perusal of records, I find that this appellant is engaged in selling of gold as a consignment agent/ broker, wherein the owner of the gold either himself brings or through his trusted persons/ employee. This appellant after retaining his brokerage returns the sale proceeds and unsold gold, if any, to the consignor, normally on the same day. This fact is evident on the face of the record, as on the day of search and seizure, this appellant has stated that he has received gold for sale from Sh. Amit Goel through his employee Sh. Pankaj Kumar Singh who has come to his shop alongwith Sh. Santosh Kumar. Further, this appellant stated in presence of Sh. Pankaj Kumar Singh that he has received the gold from Sh. Amit Goel through Sh. Pankaj Kumar Singh, and this statement was not disputed rather affirmed by Sh. Pankaj Kumar Singh in his statement recorded on the same day or simultaneously. It is further evident from the facts on record that the seized gold 20.643 kgs. has been found in the cloth bag brought by Sh. Pankaj Kumar Singh. Thus, I hold that the gold was actually in possession of Sh. Pankaj Kumar Singh who was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 112(b) requires mens rea to be established i.e. conscious knowledge of the appellant that he was dealing in smuggled gold. This fact is not coming out from the evidence on record. Admittedly, it is a case of town seizure and not a seizure (or near) in customs area or in the vicinity of international border. Thus, the suspicion of Revenue that the gold is smuggled does not lead to inevitable evidence that the gold is smuggled. Admittedly, the seized gold was of 99.5% purity, whereas normally the smuggled gold is of 99.9% purity. On this score also there can be no presumption of gold being smuggled only on the basis of foreign marking. In absence of any chain of events supporting movement of smuggled gold from the border area or customs area to town or a person coming from an international border, I hold that simply possession of foreign marking gold without a bill does not lead to the conclusion that it is smuggled. It has been so held by this Tribunal in the case of Nand Kishore Modi vs. CC (Prev.), West Bengal -2015 (325) ELT 781 (Tri Kolkata). This Tribunal has held in the case of Sanjiv Kumar Others vs. CCE, Lucknow vide Final Order No. 72924-72926/2018 dt. 27-(Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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