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TMI Blog2024 (1) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of seizure by the authorities, therefore clearly discharge the onus on the appellant to establish legitimacy of the seized gold, cast upon the appellants and we find the same to have been satisfactorily complied with. The onus therefore, is now on the department to sustain the legality or denounce the evidence tendered for justifiable reasons in law. It therefore appears that the department has proceeded solely on the basis of surmises and conjectures and did not possess a shred of evidence to bring home the charges levelled. It is settled law that suspicion, no matter how strong, cannot take the place of evidence. In the instant case there are no evidence to nail the appellants. On the contrary the department has not cared to investigate the evidence tendered by the accused or have remained deliberately silent about its outcome. The department has failed to carry out proper investigations into the case and not having examined the evidence of alleged licit acquisition of gold by Narendra Kumar Jain, tendered to them/recovered by them during search and seizure operations does not lead their case any further. Under the circumstances confiscation of the seized 89.820 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89.820 gms of gold from the office premises of the appellant assuming the same to be smuggled. 2. 02.11.2014 Statement of Dipal Kundu recorded. He allegedly stated that a person named Chhotu paid him a certain amount to carry the seized gold bars, believed to be of foreign origin, to Ramjanam of Shankar Jewellers, Shiw Market, Fancy Bazar, Guwahati. 3. 02.11.2014 Statement of Debashish Kundu recorded. He allegedly stated that he was not aware that the seized gold was illegal and it happened due to his ignorance. 4. 04.11.2014 Statement of N.K Jain, the appellant, recorded. He allegedly stated that Dalbinder Singh was a part time driver and Ramjanam was no longer his employee, that he did not have any documents in support of 89.820 gms of gold seized from his possession and admitted that the said gold to be of foreign origin. 5. 04.11.2014 Statement of Dalbinder Singh recorded. He allegedly stated that Ramjanam was still an employee of Rara Brothers Pvt. Ltd. and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny knowledge about Dipal Kundu and Debashish Kundu the other accused carriers, from whose possession the seized/confiscated 6000 gms of gold was earlier recovered. Statement of Ramjanam Ray recorded on 20.11.2014 also did not yield any substantive information about the seized gold. He also denied any knowledge about Dipal Kundu or Debashish Kundu. However, the authorities alleged that Ramjanam Ray could give no satisfactory answers when confronted with call data records evidencing conversation between his phone number and that of Dipal Kundu. 6. The department in its investigations therefore arrived at the conclusion that on the basis of the statement of Ramjanam Ray it appeared that Narendra Kumar Jain had concealed vital facts and tried to keep Ramjanam Ray away from the investigations. They state that Narendra Kumar Jain was thereafter summoned several times but each time he did not honour the same and did not cooperate with the enquiries. Deliberating on the role of the key persons Dipal Kundu and Debashish Kundu who have been charged as concerned with acquisition, possession and carriage of foreign marked smuggled gold liable for seizure, they therefore have been subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority. The pleadings as rendered by the appellant before the adjudicating authority inter alia state: 4 .. C. That in the course of business, my client's company purchases old gold ornaments from various persons and refines the same and converts them to Primary Gold Bars having purity of 99.50%. In this context, it is pertinent to state that the said gold ornaments are purchased from various persons against proper bills and payments for the same are made by cheques through the bank account of my client's company bearing Bank Account No. 3213002100042862 maintained at Punjab National Bank, Fancy Bazaar, Guwahati. By way of proof that my client's company purchases old gold ornaments and pays for the same through their bank account a copy of the Item Register (including individual ledger accounts) relating to old gold ornaments purchased by the said company between the period April 2014 and 11.02.2015 is enclosed herewith and marked as Annexure P-1 . A perusal of the said item register will clearly demonstrate that the said company purchases old gold ornaments from the open market and converts the same to Primary Gold Bars of 99.50% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, he delivered the gold to one Shri Ramjanam of Shankar Jewellers; that on 31.10.2014, Chhotu handed over 6 Kgs. of Gold to him and paid him Rs. 3,000 for the journey and promised him Rs. 20,000 for transportation of the said gold which was to be delivered to Ramjanam; and that Chhotu did not tell him about the owner of the said gold as he was only a carrier. (b) Debashish Kundu: That he had concealed the gold in his shoe as per his father's instructions; that his father had told him that the gold belongs to a trusted person and was being carried for that person; that he did not know that the said gold was illegal and he had never carried such gold earlier and had carried the same out of ignorance. 9.2. Relevant extracts of the statements of the others investigated are as: (i) Narendra Kumar Jain : That Dalbinder Singh was his part time driver who looked after office work; that Ramjanam Rai, of Bihar, was his old employee who has recently left the job; and that he has never purchased gold from Dipal Kundu of Imphal as he does not know him or his son Debashish Kundu. (ii) Dalbinder Singh : That he is the driver of Narendra Kumar Jain since the last 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession of at the time of seizure by the authorities, therefore clearly discharge the onus on the appellant to establish legitimacy of the seized gold, cast upon the appellants and we find the same to have been satisfactorily complied with. The onus therefore, is now on the department to sustain the legality or denounce the evidence tendered for justifiable reasons in law. The rejection thereof as an afterthought is clearly uncalled for. We also note that the appellant contends that this gold was of 99.50% purity and not of 99.99% purity as generally obtained in case of foreign origin gold. When it is alleged that the contraband gold was carried from Moreh to Imphal by Chhotu @ Shiva Sharma and the same was thereafter carried from Imphal to Guwahati by Dipal Kundu, meant to be delivered to one Ramjanam of M/s. Shankar Jewellery, enquiries were required to be conducted at the end of Shankar Jewellery. It therefore appears that the department has proceeded solely on the basis of surmises and conjectures and did not possess a shred of evidence to bring home the charges levelled. It is settled law that suspicion, no matter how strong, cannot take the place of evidence. In the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o their case, as no doubts can be casted upon the evidence tendered by the appellant in discharge of their obligation under Section 123 of Customs Act, unless verified and found to be fabricated or untrue. Also the appellant has claimed that their request for cross-examination of witnesses has been overlooked, in gross violation of principles of natural justice. It has also been adverted to by the appellant that in 3 cases made against the appellant- N.K Jain, the same witnesses have been made as Panch Witnesses; whether the gold was recovered from Railway Station or Bus Stand or anywhere else. The presence of such stock witnesses therefore does cast a shadow of doubt on the investigations initiated. The appellant, Narendra Kumar Jain further states that in any of the three cases, the appellant has not staked any claim towards the seized gold. 14. The appellant has inter alia placed reliance on the following case laws: (i) R.R. Shah Vs. Commissioner of Central Excise, [2016 SCC Online CESTAT 3607] (ii) Ajay Saraogi Vs. Union of India and others, [FEA 2 of 2009] (for relevancy of the statement of witnesses if not tested on the anvil of cross-examination). 15. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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