TaxTMI 
TaxTMI 
2015 (10) TMI 2132
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....mani. Shri K.P. Dey (Advocate) argued that 22 pcs. of gold biscuits, having inscription of PMPO SUISSE 10 TOLAS -999.0 on two pcs. & CREDIT SUISS 999.0 TOLAS on the rest, were seized by the officers of Customs during the search of the business premises of Rajendra Kumar Damani on 14/2/2001 during which brother of Shri R.K. Damani, Shri Bimal Kumar Damani was also present alongwith another person Shri Mahendra Bahadur. Ld. Advocate emphasized that as per the facts recorded in the opening para of Order-in-Original dated- 7/11/2006, the said 22 gold biscuits were seized from waste paper box into which Shri Mahendra Bahadur has hastly dropped the packet containing gold bars, when the officers of Customs reached the premises. That as per panchnamadt. 14/02/2001, the said gold biscuits were kept in the pocket of the accused Shri Mahendra Bahadur, son of Shri Ram Bahadur who has been shown as the owner and both the Damani brothers have been shown as witnesses in the panchnama. That Shri Mahendra Bahadur has confessed to have collected the said gold biscuits from a person at Sealdah as per the instructions of his employer Shri Rajendra Kumar Damani. Shri R.K. Damani also confirmed in his s....
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....traction made by Shri R.K. Damani is only an after thoughtnd the purchase bills later produced cannot be accepted as valid documents. Learned A.R. strongly defended the order passed by the Adjudicating authority. 4. Heard both sides and perused the case records. The issue involved in these proceedings is whether the foreign marked gold seized by the officers of Customs on 14/2/2001 was smuggled gold and whether the purchase bills for gold biscuits produced by the appellant Shri Rajendra Kumar Damani were covering the seized gold biscuits . It is the case of the Revenue that on the date of seizure neither Shri Mahendra Bahadur nor Shri R.K. Damani could produce any documents regarding licit acquisition of seized gold biscuits. By a letter dated 19/2/2001, Shri R.K. Damani produced copies of the purchase of seized gold biscuits from M/s. Anand Sales Pvt. Ltd. and also stated that his statements were recorded under duress. In the very first statement of Shri Mahendra Bahadur as reflected in the brief facts of Order-in-Original dated-7/11/2006, it was stated that he mentioned that he had gone to Sealdah Station as per the instruction of his employer Shri Rajendra Kumar Damani. Only Sh....
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....ef that the same was the sale-proceeds of the smuggled goods. However, the said currency stands released by the impugned order of the Commissioner." 3.2 During interrogation Shri Ray gave self-incriminating statement admitting the gold in question was smuggled goods. Shri Samir Kumar Ray is proprietary of M/s. Bijay Jewellers and carries the business of manufacturing gold ornaments. The statement of the Accountant of Binay Jewellers was also recorded. Subsequently, at the time of hearing of the bail application before the Hon'ble High Court of Calcutta Shri Samir Ray claimed that he had purchased 21 pcs. of imported gold biscuits from one Shri Mansukhlal T. Bavishi of Mumbai and produced one Bill No. G/118, dated 12/10/1995. Enquiries were conducted by the Customs and statement of Shri Vinay Kumar C. Zaveri, In-charge of M/s. Mansukhlal T. Bavishi was recorded on various dates. He admitted having sold 21 pcs. of gold biscuits of foreign markings to Shri Samir Kumar Ray of M/s. Bijay Jewellers, Calcutta under Bill No. G/118, dated-12/101995. He further revealed that these 21 pcs. of gold biscuits were purchased from one NRI person named Ismail who imported the same under baggag....
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....flecting upon smuggled character of the same are not found favourable with us inasmuch as firstly the appellant was under no legal obligation to maintain any records and secondly, the appellants have explained that Shri Samir Kumar Ray landed in Calcutta on 14/10/1995 which was Saturday and 15/10/1995 was Sunday and thereafter the gold was seized in the morning hour on 16/10/1995, thus giving no opportunity to the appellant to record the same in his business records. We also take note that Revenue has nowhere alleged that the baggage receipt produced by the appellant is not genuine. The fact of non-traceability of Md. Ismail, who imported the gold by itself cannot ipso facto lead to conclusion that the gold was smuggled especially when the appellants have been able to establish the sale of the same by M/s. Pankaj to Shri Mansukhlal T. Bavishi and further sale to the appellant Shri Samir Kumar Ray. In this connection we take into consideration the Tribunal's decision in the case of S.K. Chains reported in 2000 (09)LCX0202Eq 2001 (127) ELT 0415 (T) observing as under: "7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary t....