TaxTMI 
TaxTMI 
2019 (12) TMI 484
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....old was of foreign origin; (ii) the smuggled gold was sold in lieu of cash only; (iii) no bills used to be furnished for the sale of smuggled gold and (iv) the shop was not registered with VAT/GST Department. He further disclosed that his uncle, Vijay Kapoor and his cousin, Monu Kapoor were partners in the said shop along with him and he used to share business details with them. 4. During the course of investigation, forensic examination of the mobile phones and laptop of co-accused Rahul Kapoor was carried out and certain material that incriminates Monu Kapoor was recovered. In the whatsapp chats of Rahul Kapoor, it was stated to have been, clearly established that he was involved in hawala payments and cash payments to Tilak Raj @ Pankaj Dhingra. It is stated that Pankaj Dhingra has criminal history of smuggling and is on bail in other cases of smuggling as well. 5. The petitioner, on 29.08.2019, was granted interim protection by the learned Additional Sessions Judge, New Delhi from arrest in the application for anticipatory bail for the offences committed under Sections 174/175 of the Indian Penal Code, 1860. 6. On 5.9.2019, the aforementioned....
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.... show involvement of the petitioner in this case, which is apparent from the fact that (i) his business premises, as reflected from Income Tax Returns of previous years, is situated in Krishna Nagar (and not in Karol Bagh) and (ii) his bank transactions also reflect that he is having business in Krishna Nagar. This aspect can be also substantiated by the statements of other co-noticees, who have named Rahul Kapoor and not the petitioner vis-à-vis the alleged transactions. 12. Further, the learned counsel for the petitioner submitted that after issuance of Show Cause Notice under Section 124 of the Customs Act, the Department has no power to record the statements of the petitioner pursuant to Section 108 of the Customs Act, as once the Show Cause Notice has been issued under Section 124 of the Customs Act, nothing can be inquired further. If that is done, it is ultra vires as it affects the rights of the noticee to defend himself. Section 124 of the Customs Act very clearly lays a bar to the effect that no order confiscating the goods or imposing any penalty on any person can be made unless the owner of the goods or such a person is given a notice in writing with the prope....
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..../or pendency thereof does not mean that the petitioner has been granted any protection by this Court, hence the respondent is not precluded in any manner from taking any action or proceedings in the matters pending before them, as per law until and unless there are specific orders of protection or stay by the Court in favour of a party. 18. It is an admitted case that the petitioner had filed an application under Section 438 of the Cr.PC before the Sessions Court, which was dismissed vide order dated 5.9.2019. 19. It would be quite fruitful to reproduce the relevant portion of the order dated 05.09.2019 for better appreciation of the reasoning of the Sessions Court which are as follows: "That a huge recovery of smuggled gold and cash amount has been effected in this case and the applicant is directly linked with the shop premises from which the recovery has been effected and his custodial interrogation is required to find out the source and other details of the above smuggled gold and cash. It has further been argued that the applicant has been evading the joining of investigation of this case since long and for his above failure and non compliance to the summons iss....
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....n and further that they all have been involved in illegal business of smuggling of the gold and dealings therein. The above statements made by the co-accused are admissible during trial, if the same are proved to have been made voluntarily. Again till date, the source of procurement of the above seized gold or of the cash amount recovered in this case has not been disclosed or furnished by any of the accused persons, though in terms of the previsions contained in Section 23 of the above Act, the burden of proof that the above gold is not a smuggled one is upon the person, who has been found to be in possession of the sald gold or is the owner thereof. Further, during the course of investigation conducted so far, the I.O. has also been able to seize various incriminating records and documents including the account books/ledgers, records of whatsapp chats and calls etc. showing involvement of the present applicant in commissions of the alleged offence and these incriminating documents and materials may be required to be put to the applicant and he is required to be interrogated and questioned with regard to the same. Besides the above, it can also be seen that though the abo....
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....ation on sham and farce excuses. 23. Apart from what was argued by learned counsel for the petitioner and learned counsel for the respondent, there are some Whatsapp chats, which are part of the Show Cause Notice dated 02.03.2019 and read as under: "In whatsapp chat with Vijay Kapoor@ Anil Kapoor, it appears that Anil Kapoor sent Note no. of Rs. 1 with No. 96D969145 to Rahul Kapoor and directed him to pay an amount '65.28 KG' which was later changed to 114.240 and Rahul Kapoor confirmed the payment of 114.24 on 06.09.2018. This appears to be Hawala payment of Rs. 114.24 lakhs. Further, Rahul Kapoor sent pictures of trial balance of different dates to Vijay Kapoor @ Anil Kapoor detailing debit/credit entries of cash and smuggled gold from various parties and the quantum of sale of smuggled gold in lieu of cash can be seen which is to the tune of Rs. 26 crore (around Rs. 13 crore each in credit and debit). Thus it appears that Vijay Kapoor @ Anil Kapoor, used to keep track of daily transactions of smuggled gold and cash in lieu of sale of smuggled gold. In whatsapp chat with Monu Kapoor, it appears that Monu Kapoor and Rahul Kapoor had shared numbers of ....