TaxTMI 
TaxTMI 
2015 (12) TMI 588
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....hai Soni. Besides penalties of Rs. 3 Lakh & Rs. 10,000/- have also been imposed upon Shri Joy Gopal Biswas & Driver Shri Subodh Das respectively. 2. Shri N.K. Choudhary (Advocate) appeared on behalf of appellant Shri Laljibhai Kanjibhai Soni of Ahmedabad and Shri B.N. Chattopadhyay (Consultant) alongwith Shri Arijit Chakraborty (Advocate) appeared for the remaining appellants. 2.1 Shri B.N. Chattopadhyay argued that on the basis of an information Customs officers of Barasat Customs Preventive Unit intercepted one Tata Sumo, having registration No. WB 02J8006 on 5.9.2000 (1830 hrs.) near Doltala and in addition to driver Shri Subodh Das two other persons Smt. Chhabi Biswas & Shri Joy Gopal Biswas were also found sitting in the vehicle. That all these persons belonged to Bongaon P.S. That on search of the persons 40 gold biscuits and 20 gold biscuit bearing foreign markings were respectively recovered from the possession of Smt. Chhabi Biswas and Shri Joy Gopal Biswas. That preliminary testing by a local goldsmith showed the purity of gold biscuits to be 24 carats which was subsequently confirmed by the Chemical Examiner of the Customs House Laboratory. It is the case of Learned Co....
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....ginal of the bill No. 422 dated 29/8/2000 was never produced. Learned Advocate produced the original of this sale bill for verification and made the same available to the A.R. & the Bench for perusal. That the show cause notice was earlier decided by the Adjudicating authority under Order-in-Original No. 01/CUS/COM (REV) WB/2004 dated 6/1/2004 which was remanded by this Bench to the Adjudicating Authority under Order No. A-427-431/KOL/2007 Dated 22/3/2007. 2.2 Learned Consultant also made the Bench go through second para, on internal page -17 of the Order-in-Original dated 19/12/2007 to argue that Adjudicating authority has wrongly concluded that due to 2.4 gms. difference in weight of gold between quantity, indicated in Bill No. 422 dated- 29/8/2000 and the one determined at the time of seizure, establishes that the bill does not pertain to the seized goods. He relied upon the case laws of this bench in the case of Kapil Deo Prasad Vs. C.C. (P), Patna [2002 (02) LCX 0099] and made the bench go through para 9 of this case law to drive home the point that slight variations in the weight could be weighment errors on the date of seizure as all the seized gold bars has standard weight....
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.... custody was more authentic and factual which was also investigated by the Department. That even if the seized gold is presumed to be smuggled then also option of redemption was required to be given under Section 125 of Customs Act, 1962. 3. Shri N.K. Chowdhury (Advocate) appearing on behalf of his client argued that even if it is presumed that a false/forged bill was issued by Shri Laljibhai Kr. Soni then also any action could be only taken under either IPC or any other violating statute but a penalty under Section 111of the Customs Act, 1962 cannot be imposed as alleged act of presumed illegal import is already committed without his client. That if the bill is considered to be not genuine then also no penalty is attracted under the Customs Act, 1962.. 4. Shri A. Kumar, A.C. (A.R.) appearing on behalf of the Revenue as well as through written submissions filed on 9/11/15 strongly defended the conclusions arrived at by the adjudicating authority . It is Revenue's case that the first statement of Smt. Chhabi Biswas & Shri Joy Gopal Biswas clearly mention that seized foreign marked gold was smuggled from Bangladesh and there was no document with the appellants regarding licit acqui....
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....gation to trace out whereabouts of Joynal named by Shri Joy Gopal Biswas in his statement dated 5/9/2000 which Revenue is claiming it in their favour. The very fact that the present consignment was the fourth one received from Joynal by Shri Joy Gopal Biswas, investigation should have taken further details about the correct address, mobile number etc. of Joynal to know as to how Shri Joy Gopal Biswas was contacting Joynal regularly. Simultaneously, following this trail could have easily established the true nature of origin of 60 foreign marked gold whether smuggled or otherwise. Having not done that the whole effort of the department was concentrated to deflate refute the authenticity of purchase bill No. 422 dated-29/8/2000 produced by claimant Shri Nitya Gopal Biswas. 6.1 Adjudicating authority by his findings recorded on pages 17 to 19 has observed that initial statements of Smt. Chhabi Biswas & Joy Gopal Biswas and investigation done at Ahmedabad established that Bill No. 422 dated 29/8/2000 was an afterthought and cover up action and the foreign marked gold was of smuggled nature . Various parameters taken into account by the Adjudicating authority while confiscating the for....
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.... a standard weight of 116.640 gms. As such, the total weight of the 16 pieces has been shown as 1866.240 gms. in the sale voucher of M/s. Chauhan Zevares. The difference in weight made by the Customs showing a difference of about two grams, is a human error. Similarly, he submits that all foreign gold biscuits are of a standard purity of 999.00 and the test report of the India Government Mint showing the purity of little less than 999.00 is nothing but the result of human error. In any case, he submits that there appears to be no doubts about the genuineness of the sale voucher by M/s. Chauhan Zevares Pvt. Ltd. and as such, the rejection of the same by the adjudicating authority on a minor pseudo-discrepancy is not warranted." "12. The gold biscuits seized from Shri Awadesh Kr. Thakur have been confiscated by the adjudicating authority after rejecting the documentary evidence produced by the appellants showing the legal purchase of the same from M/s. Chauhan Zevares Pvt. Ltd. and by referring to certain discrepancy in the said document of the seized gold biscuits. However, I find that the discrepancies referred to by the adjudicating authority are not real inasmuch as he has held....
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....d bars not issuing a sale bill by not showing sales tax paid or payable on the goods then buyer cannot be faulted with. No investigation has been done to know whether the seller in fact had paid sales tax on the said transaction or not. It is further observed from copies of bill dated 29/8/2000, existing at pages 198 & 199 of the appeal No.C/88/2008, that Copy at page 198 was argued to have been provided by appellant and copy at page 199 has been obtained by the investigation done at Ahmedabad. Both contain the same details except that top of the copy as available at page 199 is blackened out due to improper photocopying above the words "Ornaments Merchant". Signature of the sellers as well as general handwriting of both the documents is also seemingly similar. No opinion of the handwriting expert has been obtained by the Revenue to pursue their case that both are copies represent different documents. Further records maintained by M/s. Lljibhai Kanjibhai Soni, enclosed with the appeal memorandum of the claimant, also show huge transactions in gold bars and many of the transactions of purchase & sale of gold are cheque sales. It is not the case of the Revenue that investigation with....
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....th gold ornaments. The demand for gold in India is perennial. There was only one gold mine operating at Kolar near Mysore which would produce about 2 tons of gold every year. That has also stopped functioning. The gap between rising demand and scant supply was invariably filled by smuggling. Estimates vary but it is expected that during the 80s on an average 250 Tons of gold was smuggled into India every year. Any smuggling is bad for the economic health of the country as it would defeat the very purpose behind imposition of restriction on import. The case of gold is more acute. Unchecked smuggling of gold would threaten the very stability of the country's currency. There was a time when the paper currency in the country was backed fully by the gold held by the Govt. Over the last century the basis and the support for the currency has shifted from Gold reserves to the country's assets. But every Central Bank still keeps a gold reserve called Monetary Reserve. Thus, gold in the hands of the Central Govt. would make the currency strong and conversely the gold in the hands of the public would weaken the currency. To wean away the Indian public from the craze of the gold and al....
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....Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any registers nor is there any requirement to issue invoices under any Central Act." 6.5 CESTAT, Kolkata in the case of Giridhari Dubey Vs. C.C. (P) , Kolkata [2001 (11) LCX 0215) also made following observations in para 3 (C ) of this order : "(c) In view of our findings we would set aside the order of confiscation of 32 pcs. of gold also relying at the findings of this Tribunal in the case of S.K. Chains reported in 2001 (127) E.L.T. 415 wherein in Para 10 of the reported decision the Tribunal has considered the effects of the liberalized policy as regards import and dealing in gold and thereafter concluded that that onus as placed under Section 123 was discharged in the facts of that case. We would also co....
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....S.C.)]. Hon'ble Apex Court made following observations on the issue where retraction can be accepted. "34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such." In the present case the statements of both Smt. Chhabi Biswas and Shri Joy Gopal Biswas were written by one of the panch witnesses Shri Chandan Dey. Even thei....