TaxTMI 
TaxTMI 
2000 (4) TMI 618
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....v. Vikaram K. Jain [Appeal No. C/608/99-Mum.] 2. Briefly stated the facts are that on the basis of information, Customs Officers searched the premises of M/s. K.I. Chains, Zaveri Bazar, Mumbai on 19-8-97 and seized 37 foreign marked gold biscuits and Rs. 10 lakhs in Indian Currency under the provisions of Customs Act as Shri Phool Chand Jain, the occupant of the premises at the relevant time, could not satisfactorily explain regarding the seized items. The Commissioner of Customs (Prev.), Mumbai, under the impugned order, confiscated 37 foreign marked gold biscuits under Section 111(d) of the Customs Act, imposed penalty of Rs. 2,50,000/- each on Phool Chand Jain and Vikram Jain under Section 112 of the Customs Act, by not accepting the plea of the parties involved that the impugned gold was purchased by them from M/s. L.K. Soni of Ahmedabad and by holding that L.K. Soni has colluded with Vikram Jain, proprietor of M/s. K.I. Chains and Phool Chand, brother of Vikram Jain in fabricating the documents to mislead the Department and to cover up the 37 foreign marked gold biscuits; that since the Baggage Receipt No. 018930, dated 17-8-97 did not cover the goods in question, the on....
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....ed that Vikram Jain had gone to the Customs Office on 20-8-97 and though he told the officers about legal import of gold, no statement was recorded from him; that his first statement was recorded only on 23-9-97; that the Customs Officers refused to accept the purchase of the gold bars and duplicate cash memos available in the shop; that the photocopy of the bill was submitted to the Judicial Magistrate along with Bail application for Phool Chand Jain. The learned Consultant emphasised that it is an admitted evidence as recorded under Section 108 of the Customs Act; that Vikram Jain had produced the Bill No. 66, dated 18-8-97 of L.K. Soni and the Baggage Receipt covering the seized gold and reliance was placed on the decision in Soni Vallabhdas v. Assistant Collector of Customs, 1983 (13) E.L.T. 1408 (S.C.); that Baggage receipt was found to be genuine. He relied upon the decision in the case of Rajendra Prabhu v. Union of India, 1999 (107) E.L.T. 293 (Ker.) wherein the gold was held to be legally imported as Customs did not challenge the baggage duty receipt. The learned Consultant submitted that accordingly in present matter gold should be released as baggage receipt has not been....
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....cuits on 18-8-97 on cash payment and the seized 37 gold biscuits were out of those 58 gold biscuits; that Shri Phoolchand has retracted his statement only on 21-8-97 and not immediately; that the Apex Court has held in Naresh J. Sukhawani v. U.O.I., 1996 (83) E.L.T. 258 (S.C.) that the statement recorded under Section 108 of the Customs Act is a material piece of evidence which can certainly be used against the coaccused as substantive evidence. He also relied upon the decision in the case of K.I. Pavunny, supra, wherein it was held that "Generally the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witness........" The learned SDR, therefore, contended that the statement of Phoolchand binds Vikram Jain; that Vikram Jain has admitted in his statement dated 23-9-97 that during his absence, Phoolchand looked after the business in his shop; that in this statement Vikram Jain did not mention anything about the availability of the baggage receipt with him; that he had not made any payment for 55 gold biscuit said to be purchased from L.....
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....S.C.). 7. In reply, the learned Consultant submitted that Department had not adduced even a single evidence to prove that the gold in question was smuggled one; that if said Kishan gave 58 smuggled gold bars and only 37 were recovered, there should have been sale of 21 gold biscuits; that this has to be discarded. He emphasised that though Vikram Jain went to Customs office on 20-8-97 and 21-8-97, he was not questioned in spite of his insisting that he was the owner of the gold. He also referred to the reply to show cause notice filed by Shri L.K. Soni wherein it was mentioned that Pappubhai had retracted his statement on the same day be way of telegram as well as by registered letter. 8. We have considered the submissions of both the sides. It is not in dispute that 37 foreign marked gold biscuits and Indian Currency worth Rs. 10 lakhs were recovered from the premises of M/s. K.I. Chains on 19-8-97. Shri Vikram K. Jain, proprietor of the shop, has claimed to have purchased 55 gold biscuits of foreign mark on 18-8-97 from M/s. Lalji Bhai Kanji Bhai Soni, Ahmedabad who in turn had purchased the same from a passenger Shri Md. Hanif Shaikh who had cleared the same from Cus....
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....ell the foreign marked gold biscuits, particularly when L.K. Soni, admittedly had not dealt with Md. Hanif Shaikh earlier. These facts that said Md. Hanif Shaikh arrived at India from abroad on the night of 17-8-97 and L.K. Soni informed Vikram on phone about gold on 17-8-97 go to show that the gold in question was not the same which was cleared by Md. Shaikh under Baggage receipt No. 01893, dated 17-8-97. In view of this, there is no substance in the learned Consultant's plea that the baggage receipt had not been challenged. This view is strengthened also from the facts that though the gold was purported to have been purchased by L.K. Soni from said passenger on 18-8-97, the cheques were encashed from bank only on 21-8-97 after the money was deposited in Bank. The fact of encashing the cheque on 21-8-97 is not in dispute as the learned Consultant himself had given a letter to that effect from Bank of Baroda, Gandhi Road, Ahmedabad. We also note that Mr. Manish H. Soni @ Pappubhai, in his statement dated 20-11-97, stated that cheques were prepared only on 21-8-97 though the date mentioned on cheque was 20-8-97 as per instruction of Shri L.K. Soni. Pappubhai has retracted his statem....