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2025 (1) TMI 1464

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..... oduced the certificate showing the payment of appropriate Tax / G.S.T. on the said invoices. Further, Form GSTR-2A is also placed on record. Further, Form GSTR 1 submitted by the appellants also shows that the said transactions had been recorded by the appellants and reported to the G.S.T. Department. As the claim made by the appellants with regard to ownership of the gold in question is supported by documentary evidence, in these circumstances, oral evidences will not prevail over the documentary evidence available on record. Therefore, the statements recorded during the course of investigation are not admissible evidence. Moreover, it is observed that the purity of the gold was found to be only 99.6% by weight of gold (as recorded at paragraph 37.1, page 38 of the Order-in-Original dated 08.07.2020). It is also not a case of seizure of gold from Port, Airport or International Border and the gold does not bear any marking of foreign origin. The gold in question cannot be confiscated. Consequently, the confiscation of the gold in question is set aside - no penalty is imposable on the appellants. Conclusion - i) As the claim made by the appellants with regard to ownership of the .....

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..... ms were seized under Section 110 of the Customs Act, 1962 on the allegation that the said yellow coloured gold bars were smuggled into India from Myanmar through unauthorized routes and thus making the same liable for confiscation under Section 111(b) and 111(d) of the Customs Act, 1962. 2.2. In his statement dated 27.06.2018, Shri Firoze Sekh stated, inter alia, that: (i) Since the last two years, he had been working as a carrier of smuggled gold from Assam. (ii) His mobile numbers were 8486988416, 9064304195 and 7890589802. (iii) His uncle Md. Ajim offered him the job of carrying smuggled gold from Assam to Kolkata. Md. Azim was engaged in the gold smuggling business since long and had a number of parties of Burrabazar, Kolkata to whom his uncle supplied the smuggled gold after procuring from Assam. (iv) Mobile numbers of Md. Azim were 9547295933, 9101344089 and 8597590351. (v) Two years back, his uncle viz. Md Ajim introduced him to one Shri Durlav Paul of Barpeta, Assam who was long associated with smuggling of foreign origin gold from Myanmar into India through the bordering areas of Manipur and Mizoram. Shri Durlav Paul had a jewellery shop in the name and style of .....

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..... used to supply silver jewellery to his shop. (ii) He had handed over the 2 pieces of seized gold to Firoze Sekh for delivery to a person at Burrabazar, Kolkata. (iii) The gold was procured by him as old gold jewellery that he had bought at Barpeta and after melting them, the gold biscuits were made. (iv) He had supporting documents for the same, which he had handed over to his lawyer. (v) He claimed the ownership of the seized 2 pieces of gold. (vi) The gold was supposed to be delivered to a person of Kolkata from whom he took goods on credit. The details are in credit note which he has handed over to his lawyer. (vii) His mobile numbers were 9085492109 and 9954780661. He had another phone no. 9706144878 which was closed. (viii) He did not own mobile numbers 9085616220 & 9085620289. 4.1. Shri Durlav Paul, in his statement recorded on 02.12.2018 under Section 108 of the Customs Act, 1962 has stated, inter alia, that: - (i) The recipient of the seized gold was his relative's brother named Shri Dilip Paul. Shri Dilip Paul was engaged in a jewellery shop. Shri Dilip Paul introduced him with H. K. Jewellery at Burrabazar, Kolkata and brought gold jewellery items fr .....

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..... d ornaments from different persons of Assam and the same is recorded in his Purchase and Sale Register of old gold for the period from 01.04.2017 to 30.06.2018. After receiving the old gold ornaments he himself melted and refined the said old gold ornaments in his own shop. 5. During the course of investigation, the statement of Shri Kailash Kumar Jora, S/o. Shri Hari Kishan Jora, proprietor of M/s. H.K. Jewellers, 23 B, Kalakar Street, Kolkata - 700 007 (appellant no. 2) was recorded on 25.03.2019 under Section 108 of the Customs Act, 1962 wherein he stated, inter alia, that (i) He looks after the affairs of sale and purchase of gold and silver ornaments/jewellery from their shop i.e., M/s. H.K. Jewellers, 29, Bartalla Street, 3rd Floor, Kolkata - 700007. (ii) They have another shop under the same name and style M/s. H.K. Jewellers, 23B, Kalakar Street, Kolkata 700007. However, they do not conduct any business from their shop at 23B, Kalakar Street, Kolkata 700007. (iii) His father Shri Hari Kishan Jora does not look after their family business now. (iv) They sold finished ornaments/jewellery to Shri Durlav Paul of M/s. Maa Durga Jewellery, B.K. Road Barpeta Town, PIN - 7 .....

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..... he appellants challenged the said order before the Ld. Commissioner of Customs (Appeals), Custom House, 15/1, Strand Road, Kolkata, who vide the impugned order has upheld the order passed by the ld. adjudicating authority. 8. Aggrieved from the said order, the appellants are before us. 9. The Ld. Counsel appearing on behalf of the appellants submits that the impugned order has been passed ex-parte which is in gross violation of the principles of natural justice. 9.1. On merits, he submits that no opportunity of cross-examination was granted to the them although the case is based on inculpatory statements. It is therefore contended that the findings of the ld. adjudicating authority are based on assumptions, presumptions and suspicions without any tangible evidence in support thereof on record. 9.2. It is submitted that the appellant no. 1 has sold the gold to M/s. H.K. Jewellers, Kolkata; the gold had been handed over to Mr. Firoze Sekh to take the gold and deliver the same to M/s. H.K. Jewellers. In support of this claim, he has produced the invoice dated 26.06.2018 issued by the appellant. It is stated that the appellants were in the business of gold jewellery and ornaments, .....

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..... / G.S.T. on the said invoices. Further, Form GSTR-2A is also placed on record. Further, Form GSTR 1 submitted by the appellants also shows that the said transactions had been recorded by the appellants and reported to the G.S.T. Department. As the claim made by the appellants with regard to ownership of the gold in question is supported by documentary evidence, in these circumstances, oral evidences will not prevail over the documentary evidence available on record. Therefore, we find that the statements recorded during the course of investigation are not admissible evidence. 12. Moreover, it is observed that the purity of the gold was found to be only 99.6% by weight of gold (as recorded at paragraph 37.1, page 38 of the Order-in-Original dated 08.07.2020). It is also not a case of seizure of gold from Port, Airport or International Border and the gold does not bear any marking of foreign origin. 13. In these circumstances, we hold that the gold in question cannot be confiscated. Consequently, the confiscation of the gold in question is set aside. 13.1. Accordingly, in the facts and circumstances of the case, we hold that no penalty is imposable on the appellants. 14. In the r .....

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