TaxTMI 
TaxTMI 
2021 (12) TMI 291
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.... the officers of Government Railway Police on 30.01.2018 at Mugal Sarai Jn. Railway Station. On finding that he was carrying 13 pieces of gold bars, which appeared to be of foreign origin, he was detained. The Police Officers thereafter called the Officers of Customs (P) Division, Varanasi to GRP Thana at Mugal Sarai and handed over the foreign origin gold bars alongwith Shri Mahendra Kumar Bajpai to the Officers of Customs for further action at their end, under supurdaginama dated 30.01.2018. Before taking the possession of the gold bars from the GRP, Government approved valuer was called by the Officers of Customs who valued the gold weighing 12,993.30 gms. valued at Rs. 3,98,89,431/-, as per his report dated 30.01.2018. Thereafter, the Customs Officers brought Shri Mahendra Kumar Bajpai to their office alongwith the gold for interrogation and for further investigation. Shri Bajpai did not produce any documents of sale/ purchase/ transportation with respect to the recovered gold. He further stated that as per his knowledge these gold bars has been brought to India from Bangladesh through off route by way of smuggling. Further, the gold bars were also bearing the marking normally ....
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.... him the gold bars, and came back to Kanpur. For third time, he had gone to Kolkata, this time also he again reached near Jagannath Ji Temple, the same person met him and delivered 8 pieces of foreign origin gold bars and he delivered cash amount of Rs. 10 lakhs, which was received from Shri Girish Agrawal, and returned to Kanpur on 20.01.2018. 7. This time also he reached Kolkata on 29.01.2018 by Kalka Mail. Thereafter, he reached the designated spot at Jagannath Ji Temple and contacted Shri Girish Agrawal over his mobile No. 9336814496 from his mobile No. 9935327436. After waiting for some time an unknown person came to meet him. Shri Bajpai first gave him Rs. 10 rupee note, which had been given to him by Shri Agrawal, and then on confirming the said person gave him 12 pcs. of foreign origin gold bars, he gave Rs. 10 lakh cash, he was carrying. After receiving the gold he has started his journey from Kolkata by Hawrah Jodhpur Express for Kanpur. In the course of journey, he was intercepted at Mughalsarai railway station by the GRP, resulting in the present proceedings. 8. The details of the gold bars recovered from Shri Bajpai, as examined for valuation by Girdhar Gopal, Govt. ....
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.... to appear for tendering statement, at their office at Varanasi on 05.02.2018. However, he did not appear on the said date and thereafter another summons on 06.04.2018 requiring presence on 15.04.2018. In response, a letter was received from W/o Shri Agrawal, informing therein that he has not returned home and his wife has no information. Again notice issued appearance on 27.02.2018, which was also not attended. Again similar letter of wife of Shri Girish Agrawal was received by the Customs. In response to further summons issued on 28.02.2018 for appearance on 08.03.2018, in response a letter was received from Smt. Mohini informing that Shri Agrawal is seriously ill and undergoing treatment, he is not in a position to appear in compliance of the summons. It was also stated that when he recovers, he will join investigation. 14. Call details of mobile No. 9336814496 of Shri Girish Agrawal had been obtained. On the basis of details a summary chart of calls between mobile number of Shri Girish Agrawal and mobile number 9935327436 of Shri Bajpai have been prepared, which shows too many calls between them even in odd hrs., which establishes their nexus and the involvement of Shri Girish....
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....n origin gold bars were brought into India without legal documentations and by way of smuggling and since the gold belongs to the foreign origin gold bars the officers of GRP handed over the accused person alongwith the gold to the Customs Officers of Division - Varanasi after preparing the fard and supurdnama both dated 30.01.2018. During the investigation and inquiry from Shri Mahendra Kumar Bajpai it came to the knowledge of officers that Shri Mahendra Kumar Bajpai earlier also brought gold and handed over to me 3 times. On the basis of the statement of Sh. Mahendra Kumar Bajpai the officers visited my residential premises as well as the business i.e. M/s Kala Jagat Jewellers. The officers also obtained the statement of Smt. Mohini Agrawal, my wife and recorded the same dated 31.01.2018. the custom department also summoned me which was although complied but I could not appear for recording of the statement under Section 108 of the Customs Act, 1962. Relying upon the statement of Shri Mahendra Kumar Bajpai it was concluded that Shri Mahendra Kumar Bajpai is working as an employee for me and have been smuggling the gold of my behest and have been handing over the gold bars to me. ....
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....t time he has visited Calcutta with me is nothing but a concocted statement and no evidence again whatsoever have been brought on record supporting the same. There is no evidence that earlier I have accompanied him and introduced him with some Calcutta trader, no enquiry or investigation was made from the person alleged to have delivered the goods to Shri Mahendra Kumar Bajpai. As a matter of fact there is no evidence to prove that the gold bar seized by the Custom Authorities is of smuggled nature and brought from Bangladesh. 4. The aforesaid bars were seized by the Custom officers on the ground that the said gold bars are showing foreign marking and therefore it is established that the said gold bars were brought into India by the way of smuggling. Out of the aforesaid 13 bars 2 bars are of MMTC and does not bear any foreign mark which established that the gold bars although bears a foreign mark but also available in India and cannot be said to be of smuggled in nature no evidence has been brought on the record that the aforesaid 13 bars of gold were brought into India through Bangaldesh. There is no allegation in the show cause notice that the aforesaid bars (brought by Shri M....
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....dra Kumar Bajapi during his statement has stated that his mobile No. 8400666094 where as the call details enclosed by the custom authorities are of a different number. Shri Mahendra Kumar Bajpai in his statement nowhere stated that the aforesaid gold bars were handed over to him by the man he met in Calcutta on the direction or on the telephonic conversation with me; he has also not stated my number in use anywhere during investigation. 9. Also it is pertinent to mention here that the call records for the Mobile numbers 9935327436 for Shri Mahindra Kumar Bajpai and 9336814496 for my contact that have been affixed as an evidence are the numbers entirely different from the contact numbers stated by Shri Mahendra Kumar Bajpai as his contact number as 8400666094 at the time of investigation as well as my contact number which was mentioned by my wife Smt. Mohini Agarwal at the time of investigation as 8299498727. Further to this she was enquired about some contact number 8707505281 with my name by the customs officers, regarding the said enquired number my wife Mohini Agarwal has categorically stated that she does not know anything about the number. 10. The CDR of two telephone numb....
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....2 (b) of custom Act, 1962 have been wrongly invoked against me and personal penalty should not be imposed against me. Violation of provisions of Section 7 (1) (c), 11 and 46 of the Custom Act, 1962 read with Section 123 of the Custom Act, 1962 and Sections 11 & 12 of the Foreign Trade Act (Regulation) Rules 1993 is not attracted in my case. 17. The Additional Commissioner relying on the statement of Shri Mahendra Kumar Bajpai further observed that Shri Bajpai did not produce any documents in support of the licit possession of the seized gold. Further, as per Shri Bajpai he was working for Sh. Girish Agarwal and after receiving the gold at Kolkata he was carrying the same to Kanpur for delivery to Shri Girish Agrawal. It is further observed that the markings on gold was removed and other marks have been put on the gold bars. It is further observed that Shri Bajpai has admitted that he is employee of Shri Girish Agrawal who was carrying the gold from Kolkata, without any valid documents. Further, as per Shri Bajpai he was knowingly doing the work, for earning his livelihood. It is further observed that, what have been admitted need not proved. It was further observed that the gold f....
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....vidence brought on record establishing the fact that tickets were booked by him, or Shri Mahendra Kumar Bajpai has travelled in Kalka Mail in AC-II Tier. Similarly no evidence has been brought on record that it was Mr. Agarwal who has booked Seat No.A1-43 for Shri Mahendra Kumar Bajpai in Howrah Jodhpur Train. The department has not brought any evidence into record to prove that Shri Mahendra Kumar Bajpai has travelled on the same train, as he stated in his statement dated 30.01.2018. 18.3 It is an admitted fact that the aforesaid Gold Bars were handed over to Shri Mahendra Kumar Bajpai in Calcutta only, and therefore, the charges of smuggling of Gold Bars are not sustainable. Secondly, if Shri Mahendra Kumar Bajpai was a close associate of the appellant and working as per his direction, then there must be some conversation between the appellant and Shri Mahendra Kumar Bajpai on 29.01.2018 when the gold were delivered to him in Calcutta. Further, Shri Mahendra Kumar Bajpai should have contacted the appellant when he was moving from Calcutta. 18.4 It is reiterated again that there was no conversation between the appellant and Shri Mahendra Kumar Bajpai on 29.01.2018 and 30.01.2018....
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.... cause notice, is of a different phone which was seized by the Customs Officer at the time of the seizure of the gold. 18.7 Shri Mahendra Kumar Bajpai during his statement has stated that his Mobile No. is 8400666094, whereas the call details enclosed by the Custom Authorities are of a different number. Shri Mahendra Kumar Bajpai in his statement nowhere stated that the aforesaid gold bars were handed over to him by the man he met in Calcutta on the direction or on the telephonic instruction of this appellant, he has also not stated his mobile number anywhere. Also it is pertinent to mention here that the call records for the contact numbers 9935327436 for Shri Mahindra Kumar Bajpai and 9336814496 for my contact, that have been relied as an evidence, are the numbers entirely different from the one that was stated by Shri. Mahendra Kumar Bajpai as his contact number - 8400666094 at the time of investigation, as well as my contact number which was mentioned by my wife Smt. Mohini Agrawal at the time of investigation as 8299498727. Further to this she was enquired about some contact number 8707505281, with my name by the Custom officers regarding the said enquired number, my Wife Moh....
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....ly based on assumptions and presumptions and hence liable to be set aside. It is well settled principle of law that only on the basis of the statement of co-accused penal provision of under Section 112(b) of the Customs Act cannot be held sustainable in eyes of law. No evidence whatsoever has been brought on the record to prove that the appellant is somehow concerned with the said smuggled gold, in keeping, transporting or having possession of said smuggled gold. 18.11 The Learned Commissioner (Appeals) Customs, Lucknow without considering the said facts imposed a heavy penalty against the appellant under Section 112(b) of the Customs Act, 1962. Penalty cannot be imposed against the appellant without any concrete evidence to prove indulgence of the appellant in smuggling of the gold. 18.12 The provisions of Section 112(b) of the Customs Act are not applicable on the appellant, since the gold was neither found in the possession of the appellant nor was the appellant found to have been carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing of the alleged smuggled gold. It is an admitted fact that nothing incriminating was recovered from the appellant....
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.... service of show cause notice on Mr. Bajpai, in jail on 23.7.2018, which is evidenced or witnessed by the Jailor of District Jail, Varanasi. The service receipt was forwarded by the Jailor to the Supdt. (P) Customs. Accordingly, he prays for dismissing the appeals. 21. Having considered the rival contentions, I find that : (i) Admittedly, it is a case of town seizure; (ii) In view of foreign markings on 11 out of 13 gold bars seized, the appellant - M.K. Bajpai failed to discharge the onus under Section 123. (iii) The allegation of smuggling through Bangaladesh border is only presumption by Revenue, not established. (iv) Mr. Bajpai admittedly received delivery at Kolkata, which is not disputed. (v) Appellant Mr. Bajpai remained in jail for about 18 months (From 1 February 2018 to July 2019). The order in original was passed on 29.3.2019, thus Mr. Bajpai did not have proper opportunity to defend himself. (vi) Two of the gold bars (as per seizure list, and show cause notice paras 2 and 4) are of Indian Brand MMTC, total weight 1999.100 gms, valued at Rs. 61,37,237/-. (vii) Mr. Bajpai is a person of small means, and was only a carrier. (viii) The reliability of statem....