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TMI Blog2024 (2) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... of seizure (gold seized on 18.08.1999 while ownership claim application and BBC invoices received by the department on 23.08.1999), itself tendered the said invoices virtually hinting at proximate time span in the matter. Also we find not enough merit in disregarding the application indicating 20 Tolas in lieu of 200 Tolas in one of the application tendered by the appellant, which error the appellant have described as to a clerical one. We also find no substance in the departments plea of reading exceptionally into the act of interpolating UBS in the MMTC issued delivery challan/invoice, which the appellant indicates was for reason of their own internal consumption. MMTC has admittedly raised the invoice in question in favour of BBC which the department sourced upon investigations done with BBC and a copy of which was made over to the department by the appellant during investigations. Also, BBC has submitted before the authorities that sales were normally made against manual invoices, but computerized billing was resorted to by them on the basis of customer s request. We note it is these computerized invoices that the department laid its hands on while conducting immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn origin and smuggled into India. 33. The Appellants still could not convince lawful import or acquisition of the recovered gold. Based on initial statement, documents and sequence of documents and results of cross examination. I am of the view that the appellant does not have lawful possession over seized Gold and I am of the opinion that foreign gold in question was not imported into India by lawful means and thus the confiscation of the same is upheld and once it is proved, the Appellants have rightly been penalized. It is in this backdrop that the impugned Order-in-Appeal under challenge is the subject matter of the lis. 2. The brief facts of the case are : 3. That based on a specific information while keeping surveillance, the officers of the department intercepted one person named Satendro Panda on 08.08.199 at Cuttack bus stop. The said person had arrived from Berhampur. No sooner the person alighted from the ESS Coach and was about to board autorickshaw the officers on vigil at Badambadi Government Bus Stand, Cuttack, intercepted the above named accused. The personal search of the person led to recovery of 20 numbers of gold biscuits of foreign origin col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive days post seizure) claimed ownership of the seized gold intimating that the seized 20 tolas of gold were procured from Bherunath Bullion Corporation (BBC), Vizag vide Bill no. 03101 dated 16.08.1999 and Bill no. 03137 dated 17.08.1999 and that they were sent to Cuttack for making of gold ornaments. K. Prasad Rao Subudhi, the appellant herein, requested the Department for the release of the seized gold as it was licitly procured by him, from the above named licensed Bullion Merchant. The Department however, turned down the said request stating that against the seized 200 Tolas of gold, the above named Subudhi (KPRS) had staked claim for 20 Tolas only and therefore, the same was unrelated to the present case. 6. In view of the above further enquiries were initiated and the appellant summoned repeatedly by the department for pursuing the investigations. Notably, KPRS did not make himself available to the Department for quite a while. In this regard it is noted by the Department as under : Although Sri Prasad Rao Subudhi was not responding to the various summons issued to him to facilitate investigation into the case, he was nevertheless effectively pursuing claim of innoce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.09.1999. The Department however, continued to summon K. Prasad Rao Subudhi for furnishing of original documents. In case the said documents were already tendered and verified by the Department, no fresh summons were required to be issued thereto. Further, it is recorded in the notice that contrary to the general norms and in view of the belligerent attitude and continuous non co-operation of K. Prasad Rao Subudhi, a copy of his statement dated 31.01.2000 and 01.02.2000 were supplied to KPRS. We find from records that instead of co-operating in the smooth conduct of the enquiries, perhaps in pursuance of the legal advice tendered by his advocates or of his own wisdom, K. Prasad Rao Subudhi preferred to communicate with the department through letters implicating the officers of misconduct and the like. In fact we take note of the deep anguish and frustration of the investigating officers, having recorded as under in the show cause notice. From the above it is as clear as day light that Shri K. P. Rao Subudhi has obstructed in the conduct of the investigation in every possible manner and has not produced the documents and other evidences called from him in the various summons i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20 Nos. (200 Tolas) of customs, cleared (licitly acquired ) gold biscuits from BBC Vizag vide Bill No. 03101 dated 18.08.1999 and Bill No.03137 dated 16.08.1999. It is also on record that despite multitude of summons given to the said appellant, to produce the original copy of the said 2 bills/invoices, their receipt is nowhere acknowledged by the department and continues to be hotly contested by either side. The appellant also claimed ownership of the said 20 gold biscuits weighing 200 Tolas and that mentioning of 20 Tolas instead of 20 bars of gold biscuits, in his correspondence with the department was essentially a typographical error. To the aspect of the delay in the adjudication process we find it largely on account of the ad-interim stay obtained by the appellant, in the conduct of further proceedings in the case. This stay was finally vacated with the appellant withdrawing their writ petition, vide order dated 27.02.2017. The 4 Bills of Visakha Bullion Corporation (VBC) 9458, 9459, 9460 and 9461: all dated 12.08.1999. 11. In follow up investigations about the four bills of VBC, to ascertain their connection with the seized gold, we note that S.V. Raju of Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contradictions in the statement tendered by the appellant before the authorities. Thus while at one place in his statement dated 31.01.2000 the appellant has admitted to have given the seized gold to Satendro Panda and go to Babulal Babu, where he would advise to whom the said gold is to be handed over, at other place in the said statement the appellant denies any knowledge about the said Babulal Babu, in support of their case, thus generating inherent contradiction. 15. It is further brought on record that instead of cooperating with the investigations to decide the authenticity of the bills of BBC, so as to decide status of his application for release of seized gold biscuits, the appellant filed several petitions in various courts and wasted precious time for conduct of expeditious and a thorough enquiry. 16. Having elaborated on the factual matrix of the case at great length, we note that for the invoices of VBC, as were recovered by the department from Satendro Panda the accused in his initial testimony before the officers has stated that they were wrongly handed to Satendro Panda who had carried them by mistake in a hurry. The appellant has subsequently denied the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, we brush this aspect of the investigations as totally unrelated to the present matter and hence of no consequence to the issue at hand. Another ground in support of the departments stand taken by the Ld. Authorized Representative Sri Faiz Ahmed is concerning the financial health of the appellants and to state that they did not have enough resources to make such large cash purchases. Other than a bland statement to this regard, we find that the department falls woefully short to adduce any evidence to buttress this stand. While it is an admitted position by the appellant that the two purchases were made in cash, the department failed to further probe into this area of investigations. As the appellant themselves have disowned the theory of procurement from VBC, we refrain from considering any aspect relating the seized gold to the said four invoices of VBC initially recovered from Satendro Panda at the time of recovery of the gold from him. 20. We find that it remains a matter contentious between the department and the appellant, that only photocopies of two invoices of BBC - No. 03101 dated 16.08.1999 and 03137 dated 17.08.1999 were made over to the authorities and original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard has been twofold (a) That he was repeatedly harassed by the department for which he had filed complaints and grievances with the authorities both within and outside the department and (b) that he was mortally scared and very much afraid to approach the authorities and that is why he had taken court s approval to be subjected to questioning in the presence of his advocates. Such conduct can necessarily not mean to indicate guilt or any wrong doing. It could also be for a variety of other reasons as well. Also the fact that if there were no previous gold transactions done by the appellant, it could not mean to infer that the appellant was disentitled in so doing or the very fact of doing so was a transaction of illegality in dealing with foreign marked gold. Such surmises by the department are bereft of any sound logic and are certainly impetuous. 23. We also note that during the cross-examination of three key witnesses rendered, as per the directions of the Hon ble High Court, the department has not been able to churn out any new fact, as could make out a convincing case for the revenue. There has been no dispute of the evidence tendered by way of delivery challan/i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mr. of Customs (Prev.) 2001 (127) E.L.T. 415 (T) the appellant had given the source of acquition of the foreign mark gold proving lawful acquisition, the burden casted upon the appellants has been discharged. In the said order it is also held that the admission of the manager of the appellants, to the effect that they were purchasing foreign marked gold biscuits from the open market without receipt, by itself is no indication that the gold under seizure was not legally imported. (iii) Sri Samir Kumar Roy Others V. CC (Prev.) West Bengal 2001 (135) E.L.T. 1036 (T) Onus as placed under Section 123 was discharged when the appellants produced the sale/purchased vouchers showing the sale of the goods from the gold dealers who admitted having sold the same. In absence of any requirement of law requiring the gold dealers enjoying the sale/purchase of foreign marked in India, to indicate the brand name of the same in the sale/purchase the sale documents produced by the appellants cannot be dismissed on the said ground. In the instant case also, we find that the entire chain of sequence starting from importation of gold biscuits of M/s Kan Karan Impex, its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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