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TMI Blog2023 (10) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold bar seized from the appellant s premises matches neither with the gold imported by M/s Mahalaxmi Jewel Exports by Bs/E No 8974 dated 2.10.2016 and 10240 dated 1.12.2016, nor the gold recovered from the residential and factory premises of Shri Prem Sagar Arora. This also points to the fact that the gold bar seized from the appellant is not diverted duty free gold by M/s Mahalaxmi Jewel Exports - also no link has been found between the gold imported by M/s Mahalaxmi Jewel Exports and the 1kg gold bar seized by DRI from the appellant s shop. Since documentary evidence has been presented in favour of the gold showing the Appellant s legal ownership and acquisition, it is held that tenets of Section 123 Customs Act are satisfied and the Appellant has discharged the burden of proof. The Appellant s statement also reiterates the same - the appellant s submission agreed upon that the Department has not shown any proof that the seized cash was sale proceeds of smuggled gold and thus confiscation under Section 121 Customs Act is unsustainable, more so since the appellant s Books of Accounts clearly reflect that this was part of his Cash in Hand and had been received from legitim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sahib Kumar Bala, Ajay Dubey, Bharat Kashyap, Omendra Singh, Chitanjan and Vishnu Dutt also admitted the fact of making copper mixed jewellery and showed the steps and machines used for this purpose. The same was reflected in a Register recovered from the factory premises. This exported jewellery only contained 10-15% gold and the rest of the duty free gold was diverted and sold by him in the domestic market. Shri Vishal Kumar of M/s Al Rabiha Jewellery Trading, Dubai also confirmed the same in his statement u/s 108 of the Customs Act. Prem Sagar Arora had imported total 45 kgs of duty free gold by Bills of Entry No 8974 dated 02.10.2016 and 10240 dated 01.12.2016, and from this it was alleged that 25kgs gold was found secreted in his premises and the rest had been diverted to domestic market. 4. In his statement dated 17/18.12.2016, Prem Sagar Arora stated that he sold the diverted gold to various people such as the Appellant, M/s Ultimate Bullion, Mr. Kapil, Mr. Patil and Mr. Mridul Jain of M/s Satguru. Based on this statement, search was conducted at the Appellant s premises on 19.12.2016 which led to seizure of 1kg gold bar of 995 purity having the description VALCAMBI S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case against the appellant has been made on the basis of assumptions and presumptions and there is not an iota of evidence linking the appellant with any wrongdoing of M/s Mahalaxmi Jewel Exports, Shri Prem Sagar Arora, or M/s Mine O Gold, nor is there any proof that confiscated gold is smuggled, or that the confiscated money is sale proceeds of smuggled gold. 12. Ld. Counsel states that there is no statement which says that the seized gold bar was procured by the appellant from M/s Mahalaxmi Jewel Exports or that the seized currency is the sale proceeds of smuggled gold. There is only a general uncorroborated statement of Prem Sagar Arora that he diverted duty free gold to the domestic market and the Appellant was one of the buyers. However, Ld. Counsel states that this statement could not have been given any credence for passing the impugned order in absence of Prem Sagar Arora s examination as per Section 138B of the Customs Act by the Ld. Adjudicating Authority, especially since the Appellant had sought his cross-examination. Reliance is placed on the decision of Hon ble Punjab Haryana High Court in the case of G-Tech Industries vs Union of India 2016 (339) E.L.T. 209, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs (Preventive) Delhi 2022 (9) TMI 1131 held that Undisputedly, the process prescribed under Section 138B was not followed by the Commissioner with respect to the statements. Therefore, the statements are not relevant to this case on this ground alone Commissioner Central Excise Udaipur vs Mittal Pigments Pvt Ltd 2022 (11)TMI 1071 Karim Jaria and Crown Lifters Pvt Ltd vs Commissioner of Customs (Import-I) Mumbai 2022 (4) TMI 948 Joginder Kumar vs Commissioner of Customs (Import) Delhi 2022 (9) TMI 227 15. Ld. Counsel states that since there is no corroboratory evidence, the statement of co-accused Prem Sagar Arora could not have been the sole criteria to arrive at the finding of any illegal act by the Appellant, or order for confiscation or impose penalty as held by:- Hon ble Supreme Court in Surinder Kumar Khanna vs Intelligence Officer, Directorate of Revenue Intelligence 2018 (362) E.L.T. 935 Hon ble Allahabad High Court in Commissioner of Customs (Prev) Lucknow vs Shakil Ahmed Khan 2019 (366) E.L.T. 634 Hon ble Madras High Court in Commissioner of Customs vs Sushil Kumar Kanodia 2015 (319) ELT A73 Tribunal in Mahabir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaxmi Jewel Exports. This shows that the seized gold is not similar in any manner to the gold imported or allegedly diverted by Prem Sagar Arora. 19. Ld Counsel further states that search of the appellants premises on 19.12.2016 led to recovery of 1kg gold bar with marking VALCAMBI SUISSE 995 and Rs.41.75 lakhs/- for which the Appellant gave verbal explanation to the seizing officers which was ignored. The next day on 20.12.2016, the Appellant sent a letter to the DRI IO as well as DG DRI alongwith proper documentary evidence, such as:- ---Purchase Invoices, including the VAT paid Tax Invoice No.T/16-17/441 dated 21.11.2016 showing purchase of 2 gold bars of 1kg each from M/s Somya Bullion Jewellers, 45, 4th Floor, Kucha Mahajani, Chandni Chowk, Delhi-06, by virtue of which the appellant bought the gold bar ---Cash Ledger, which shows that there was accounted cash amounting to Rs.44,33,223/- from 06.12.2016 onwards. It further reflects that when demonetization was announced, the appellant had accounted cash of more than Rs.1.95 crores/- in demonetized currency notes in his Books of Accounts from which more than Rs1.50 crores/- cash was deposited in the appellants Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement also reflects the same. Various statements also show that he was not associated with M/s Mahalaxmi Jewel Exports in any manner, nor did he have any commercial dealings with it which is clearly reflected in the Ledgers. Ld. Counsel also states that no evidence has been adduced by the Department to show that the seized cash is sale proceeds of smuggled gold and therefore confiscation u/s 121 Customs Act is untenable. To fortify his submissions, Ld Counsel for the Appellant relies on the following orders of this Tribunal:- Nand Kishore Sumani vs Commissioner of CX Customs Siliguri 2016 (333) E.L.T. 448 (affirmed by Hon ble Calcutta High Court 2016 (337) E.L.T. 10 Ratan Saha vs Commissioner of Customs Patna 2021 (375) E.L.T. 435 Nitya Gopal Biswas vs Commissioner of Customs (Prev) Kolkata 2016 (344) E.L.T. 209 22. Ld. Counsel further states that mere foreign marking on gold cannot lead to the inference that it is smuggled as once gold bars are legally imported, they get mixed up with the mass of goods in the country. Foreign markings can at best be considered as hearsay evidence because there is no way to know whether the marks were made abroad or withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing, nor did he say that he was involved in buying diverted duty free gold from M/s Mahalaxmi Jewel Exports. Infact, the appellant s Ledger shows absence of any sale-purchase with Prem Sagar Arora. 28. We also find force in the arguments of the learned Counsel for the Appellant that the marking on the gold bar seized from the appellant s premises matches neither with the gold imported by M/s Mahalaxmi Jewel Exports by Bs/E No 8974 dated 2.10.2016 and 10240 dated 1.12.2016, nor the gold recovered from the residential and factory premises of Shri Prem Sagar Arora. This also points to the fact that the gold bar seized from the appellant is not diverted duty free gold by M/s Mahalaxmi Jewel Exports. We also hold that no link has been found between the gold imported by M/s Mahalaxmi Jewel Exports and the 1kg gold bar seized by DRI from the appellant s shop. 29. Since documentary evidence has been presented in favour of the gold showing the Appellant s legal ownership and acquisition, we hold that tenets of Section 123 Customs Act are satisfied and the Appellant has discharged the burden of proof. The Appellant s statement also reiterates the same. On the other hand, the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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