TaxTMI 
TaxTMI 
2014 (6) TMI 381
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....p; (3) Penalty of Rs. 1,00,000/-(Rupees One Lakh Only) was imposed on Shri Dilip Bhai Ludwani, Prop. of M/s Honest Bullion, Indore under section 112(b) (i) of the Customs Act, 1962. (4) Penalty of Rs. 1,00,000/-(Rupees One Lakh Only) was imposed on Shri Keshav Kumar Nachani, Prop. of M/s M.P. Bullion, Indore under section 117 of the Customs Act, 1962. 1.2 Police personnel of P.S. Fatehpur Sikri, Agra intercepted one Shri Dev Shanker Shama at chauma check post on 21.04.2001 at 11.00 AM during their routine checking of Buses coming from Jaipur and found that above said passenger was possessing 24 Gold Biscuits of foreign origin. Custody of Sri Sharma and gold was taken by Customs Authority on 22.04.2001 drawing Panchanama on the said date by them. His interrogation brought out that he had concealed 24 gold biscuits of foreign origin in anklet tied with cello tape inside his trousers. No document i.e. Bill/Invoice/Challan etc. was produced by him either before the Police or before the Customs Authority to prove lawful import and possession thereof. On one side of the gold biscuits the words 'ARG....
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....re covered by Sale Bill No. 1334, dated 21.04.2001 issued by his firm in favour of M.s Marudhar Jewellers, Jalgaon. Such version of Shri Keshav Kumar Nachani, Prop. of M/s M.P. Bullion did not get appreciation by investigation due to confessional statements of Shri Dev Shankar Sharma recorded on 22.04.2001 and 25.04.2001 stating no bills or invoices were given to him by Shri Dilip Ludwani. 1.6. The documents produced before ld. Adjudicating Authority did not provide any correlation thereof with the seized gold biscuits. A copy of the letter dated 05.05.2001 (date over written), signed by Shri Dev Shankar Sharma addressed to the ld. Adjudicating Authority pleading no recovery of the gold from him and such gold biscuits belong to Shri Keshav Kumar Nachani, the owner M/s M.P. Bullion was found by learned Authority to be after thought and false. 1.7. A copy of medical certificate dated 30.04.2001 (date over written) issued by Dr. L. D. Chowdhary, BAMS certifying that Shri. Dilip Ludwani was under his treatment from 16.04.01 to 29.04.2001 and he was advised rest was proved to be false. Since the telephone number of Indore shown therein was of 07 digits (2342244) while in Challan N....
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....ds. Because he was going to Jalgaon he took the gold from Shri Dilip Bhai Ludwani (brother-in-law of Keshav Kumar Nachani) to hand over the same to M/s. Marudhar Jewellers of that place. 3.3. Accordingly to all the appellants, Department did not bring out any evidence to show that the gold were smuggled. Similarly, Revenue failed to show who smuggled the same and through which Airport, sea port or Customs Stations the seized gold came to India. That was neither seized at International border nor any of the appellants had gone abroad around aforesaid time of seizure of the gold to bring the same. Therefore mere appearance of foreign marking on the seized gold does not lead to the conclusion that the same were smuggled. 3.4. It was also submitted by appellant that Export Policy 1997 - 2002 permitted import of gold. Therefore that was not prohibited goods and in terms of Notification No.80/1997-Cus dated 21.10.1997 import thereof was exempted from payment of Customs duty. Gold import was also allowed to MMTC and other approved agencies. MMTC imported the impugned gold in terms of the Bill of Entry at page 88 of the paper-book in appeal folder. That shows that the gold covered by....
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....confiscate the gold. When M/s.Dev Shankar Sharma never told that the gold were smuggled, there is no scope to hold the same to be so, without any evidence of smuggling brought to record. 3.8. It was prayed by appellant that not only the adjudication may be set aside but the gold should be returned and penalties waived following the principles laid down in following Judgments: (1) CCE, Chennai Vs. A.K. Hamsa Mohindeen reported in 2012 (276) ELT 503 (Mad.) (2) Gian Chand And Others Vs. State of Punjab reported in 1983 (13) ELT 1365 (S.C.) (3) AIR 1967 Mad. 39 (V54 C 13) Hussain Bhai and others v. Commissioner of Income Tax (Mad.) (4) Rajiv Shastri Vs. CC, Ahmedabad reported in 2009(238) ELT 163 (Tri.- Ahmd.) (5) Assistant Collector Vs. Mukbhujusein Pirjada reported in 1970 CRI L.J. (1305). ARGUMENT ON BEHALF OF REVENUE 4.1. Per Contra, Revenue submits that appellants are in second round of litigation since in the ....
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....dwani had not given any sale bill or any voucher to him in respect of the gold seized. (vii) The Gold Biscuits as above were found by the Police officers on 21.04.2001 from his possession and those were seized by the Customs Officers in his presence as well as two independent witnesses on 22.04.2001. That gold belonged to M/s Honest Bullion, Jaipur and Shri Dilip Bhai Ludwani is owner of that firm. Shri Ludwani had given him the said 24 gold biscuits of foreign origin for delivery to M/s Padam Chand D Nahar, Subhash Chowk, Ratanlal C- Bafana Ke Samne, Jalgaon. (viii) The residential address of Shri Dilip Bhai Ludwani is in Sudama Nagar, Indore and at Baba Harish Chandra Mani Bazar Gali, Nestle school, III Floor, Jaipur. Shri Ludwani remains at Jaipur from Monday to Saturday and at Indore on Saturday & Sunday. (ix) Shri Keshav Kumar Bhagwandas Nachani alias Hari Bhai Nachani resides at 614-Usha Nagar, Narendra Tewari Marg, Indore and he is the owner of the firm M/S M.P. Bullion, Chhota Sarrafa, Indore. 4.4. According to Revenue, Statement of Shri Dev Shankar Sha....
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.... origin from Jaipur by bus and he was and intercepted by Police at the Choma Police Chowki at 11.00 P.M. on 21.04.2001. On the next day i.e. 22.04.2001 the Customs authority came to Police Station and took his custody alongwith gold. There was no seizure of the gold by Police on 21.04.2001 under CRPC. For the first time the seizure of the gold was done under Panchnama by Customs on 22.04.2001 in accordance with the provisions contained in Customs Act, 1962. 7. Shri Dev Shankar Sharma stated before the Customs authority consistently that he was an employee of M/s. Honest Bullion owned by Shri Dilip Ludwani who had his business establishment in Indore as well as Jaipur. At no pont of time that statement was contradicted by him. But Shri Ludwani and Shri Keshav Kumar Nachani created fiction to misguide the investigation claiming ownership of the seized goods by Shri Nachani bringing out the plea of purchase of the gold from MMTC for the first time before Tribunal and also creating doubt pleading that of bill No. 1334 dated 21.04.2001 was issued by Sri Nachani who has also a branch in Jaipur, while no such bill was found from Sri Dev Shankar Sharma at the time of seizure of the gold....
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....by Shri Nachani for the first time on appeal record. Even on perusal of those documents no way proves case of appellants. 11. When the fact was proved showing that the gold was given by Shri Dilip Ludwani, the claim of Shri Nachani is ruled out. He entered appearance only to raise doubt about the ownership of the seized good for no basis or reason but probable to same his brother in law Shri Ludwani mis-guiding investigation. He failed to establish his ownership over the gold. Therefore no substantive evidence came to record to appreciate his claim. Therefore the gold did not belong to Shri Nachani at all according to the version of Shri Dev Shankar. Relationship of Shri Sharma and Dilip Ludwani as master and employee could not be ruled out. Thus when Sri Nachani was not owner of the seized gold and Sri Dilip Ludwani disowns ownership thereof, that became property of Govt. of India which cannot be claimed by anybody. Nachani also failed to bring any evidence to show claim of seized gold by M/s Marudhar Jewellers of Jalgaon if that concern was buyer of that gold. All there facts prove that Sri Nachani was not owner of the gold. 12. In the course of hearing except creating doub....