TaxTMI 
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2022 (4) TMI 269
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....t Sonapatti, Badabazar, Kolkata and that he was to hand over the same to Shri Ramchandra Verma in Allahabad and meanwhile he was intercepted. Shri Anurag Jalan in his statement dated 19.02.2015 stated that Shri Balram and ShriBaikunth worked at his shop and they sold 3 kgs of gold to one unknown person; he stated that Shri Balram sold 3kgs of gold to Shri Jitender kumar Mishra who used to work of or Shri Sonu Mishra. Shri Jitendra Kumar Mishra and Shri Anurag Jalan were arrested, however, they were enlarged on bail by Chief Metropolitan Magistrate. 2.1. Shri Jitendra Kumar Mishra in his statement dated 23.04.2015, stated that he had purchased the said gold from Indian Art Gallery, Jaipur on 14.02.2015 in the credit of ShriSonu Verma (son of Shri Ram Chandra Verma).On being summoned, Shri Ram Chandra Verma did not attend while his Advocate submitted that Shri Ram Chandra Verma had nothing to do with the gold carried by Shri Jitendra Kumar Mishra. Shri Mohit Verma (son of Shri Ram Chandra Verma) in his statement dated 15.05.2015 submitted that he did not know about the various mobile numbers discussed therein. Shri Jitendra Kumar Mishra vide his letter dated 21.05.2015 reiterated hi....
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....r 8127343513 and imposed penalties as under: (i) Rs. 25,00,000/- on Shri Jitendra Kumar Mishra (ii) Rs. 25,00,000/- on Shri Mohit Verma (iii) Rs. 25,00,000/- on Shri Ram Chandra Verma (iv) Rs. 25,00,000/- on Shri Sonu Verma (v) Rs. 25,00,000/- on Shri Anurag Jalan (vi) Rs. 25,00,000/- on Shri Balram alias Sri Santosh Kumar (vii) Rs. 50,00,000/- on Shri Jitendra Kumar Mishra 3. Learned counsel appearing for Shri Ram Chandra Verma, ShriSonu Verma, Shri Mohit Verma and Shri Jitendra Kumar Mishra (Customs Appeals No.77004, 77005, 77006 and 77007 all of 2018) submits that the action of the learned Commissioner in flouting the decision of Hon'ble Kolkata High Court is in utter disregard of the principles of judicial discipline and unbecoming of an adjudicating authority; learned Commissioner has failed to upkeep the spirit of the order of Hon'ble High Court. He submits that the proceedings culminating in the impugned order are not maintainable in accordance with law as they are barred by limitation. He submits that SCN for extending the period under Section 124 read with Section 110 (2) of the Customs Act was issued on 04.08.2015 and was served on Shri Jitender Kumar....
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....the purity of gold is not equal 999.9 carat; undisputedly the impugned gold is tested to have an embossing of purity of 99.5% goes to prove that the gold is of Indian origin; Department did not bother to make an inquiry from the seller of the gold bullion; none of the documents were produced by the Appellants have been discredited; learned Commissioner proceeded on unwarranted assumptions, presumptions, surmises and conjectures; the proceedings lack legal sustainability. He relies upon Sitaram Sao Vs State of Jharkhand 2012 (SCC) 630. He also relies upon the following case laws: (i). Mridul Agarwal Vs Commissioner of Customs, Lucknow, 2018 (362) ELT 847 (Tri. All.) (ii). Shantilal Mehta Vs UOI and others, 1983 (14) ELT 1715 (Del.). (iii). CCC (P) Vs Prabhash Kumar Jalan, CESTAT, Kolkata Bench, Final Order No.75500/2021 dated 27.08.2021. (iv). Shri Sarvendra Kumar Mishra Vs Commissioner of Customs Vide Final Order No.70198-70199/2021 dated 06.09.2021. (v). Nand Kishore Modi Vs Commissioner of Customs (Preventive) West Bengal, 2015 (325) ELT 781. (vi). Rajesh Pawar Vs UOI, 2014 (309) ELT 600 (Cal.). (vii). Commissioner of Customs (Prev.) Kolkata Vs Ashok Kumar Agarwal, ....
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....ew of the direction given by Hon'ble High Court of Calcutta in the impugned matter. 8. Coming to the first issue as to whether the seizure of gold is justified, we find that Shri Jitendra Kumar Mishra in his statement dated 15.02.2018 submitted that he worked as a gold carrier at the jewellerys shop of Mr. Ram Chander Verma at Allahabad; he came to Calcutta on 19.02.2015 on being directed by Shri Ram Chander Verma and his sons Rahul Verma and Sonu Verma; the said gold was handed over to him without any document/bill/invoice by the persons namely Baikunth Nath and Balram working with Shri Anurag Jalani at Sonapatty, Burrabazar, Calcutta; he also provided phone numbers of different people involved. We find that Shri Jitendra Kumar Mishra in his statement dated 23.04.2015 submits that he had purchased the gold from Indian Art Gallery, F-2, Vinayak Path, K.C. Road, Bani Park, Jaipur on 14.02.2015 in the credit of Shri Sonu Verma bearer son of Ram Chander Verma. We find that as per show cause notice the words "Valcambi Suisse, 1 Kg. Gold, 995.0 CHI ESSA YEUP FOUNDEUR" with tampered bar No. were found. The Chemical examiner certified the gold to be of purity 995.0. The appellant Shri Ji....
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....he impugned gold. Shri Anurag Jalan submits that the principles of natural justice have been violated in as much as the copy of his statement recorded in Hindi was never given to him in spite of several requests made to them in this regard. He submits that his request for the opportunity to cross-examine Shri Jitendra Kumar Mishra was not accepted by the adjudicating authority. He was given only unsigned translated copy of his own statement. We find that the persons i.e.Baikunth Nath and Balram who claim to have handed over 3 kg gold to Shri Jitendra Kumar Mishra were not examined. All the investigation done by the Department in this regard was to find out that the mobile used by Shri Balram was, in fact, in the name of Shri Santosh Kumar and that Santosh Kumar has not appeared even after being summoned. We find that learned Commissioner records only findings against Shri Balram to the effect that he has not submitted any replies to the show cause notice; Shri Balram and Shri Santosh Kumar are one and the same person having different addresses. It is not understood as to how learned Commissioner could come to a conclusion that the person had the role in smuggling whereas, the inves....
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....ment has appealed before the Division Bench vide writ-petition No. 1142 of 2015. Hon'ble High Court at Calcutta passed an order dated 29 January, 2018. Hon'ble High Court held that "we do not find any reason to interfere with the judgment under appeal. The appeal and stay petition shall both stand dismissed". We find that Hon'ble High Court at Calcutta has set aside the show cause notice issued for extending the period of limitation to issue a show cause notice seeking confiscation of the seized gold. Hon'ble High Court at Calcutta has set aside this order and has given directions to the Department to issue a fresh show cause notice. The appeal filed by the Department is also dismissed. Nothing has been shown on record as to whether the order of the Division Bench has been appealed against before the Apex Court, and if so, any stay has been granted. Under the circumstances, we find that the order of the Division Bench attained finality. A fresh show cause notice directed to be issued by the Hon'ble High Court at Calcutta is the show cause notice extending the time. However, the Department has ignored the same without obtaining stay against such order of Hon'ble High Court at Calcut....
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.... Calcutta. We find that Hon'ble Supreme Court in the case of Union of India versus Kamalakshi Finance Corporation Ltd. - 1991 (55) E.L.T. 433 (S.C.) held that :- "The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject - matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws". 14. In view of the above, we hold that there were reasons to believe and a reasonable belief that the impugned gold is liable for confiscation. However, we hold, following the order of Hon'ble High Court, Calcutta that the show cause notice is time barred in terms of Section 110 of the Customs Act, 1962. We find that no evidence is put forth to show any appeal has been filed against the order of the Hon'ble High Court and if so, whether any stay is granted....