TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1049
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....upon Shri Ashok Jharwal. Jewellery Appraiser, Jhandewalan Jewellery Complex, New Delhi who examined the said bars and affirmed the value and purity; Shri Ashok Jharwal examined the above recovered gold bars and submitted his appraisal report which is appended as Annexure 'A' to the panchnama. The said Gold bars totally weighing 4Kg were valued at INR 1,03,19,000/- (tariff value at US$ 425 per 10 Grams) and market value at the time of seizure Rs. 1,11,96,000/- (@ Rs. 27990 per 10 gram for 24 carat gold in Delhi). The appraisal and valuation given by Shri Ashok Jharwal was accepted by both Mr. Samsodin Barauntong Taha and Miss Aisha Jadolan Macud. 4. Since the said gold bars were smuggled into India, the officers of DRI placed the above said gold bars under seizure under the provisions of Section 110 of the Customs Act. 1962 on the reasonable belief that the same were smuggled into India and were liable for confiscation under the provisions of Customs Act, 1962." 3. During the search operation, 2 persons knocked at the said hotel Room No. 201 who identified themselves as Rajeev Kumar and Amrit Pal @ Shunty. On enquiry by the officers they stated that they had come to take delivery....
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..... Rajeev for taking delivery of gold in this manner. Further stated that Mr Sameer was working with M/s Patil Enterprises which is engaged in melting of gold. 5. On the basis of disclosures made by Mr. Rajeev Kumar and Mr. Amrit Pal and also by the visiting Filipino nationals Mr S.B. Taha and Miss A.J. Macud, summons were issued by the DRI to Mr. Pradeep Patil and Mr. Samir alias G.S. Mulani. 6. Mr. Pradeep Patil in his statement inter alia stated that Mr Pawan Kumar Arora had called him from his mobile phone asking for the serial no. of Indian currency having the denomination of Rs. 10 for further sending the same to his carrier. He gave the same by using Whats App from his Mobile No. That on 18th July 2014, in the morning his employee Mr. Rajeev Kumar alias Raju came to his shop, and his employee Mr. Sameer gave the same note of same serial no. to Mr. Rajeev Kumar, who then went to take the delivery of the gold and was intercepted by the officers of DRI at Hotel Delhi Pride. That the said gold bars were to be delivered to him for melting the same. That by using the this modus operandi, they have already sold about 400-500 Kgs gold bars which were of foreign origin, imported int....
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....s totally weighing 4kg having tariff value of Rs. 1,03,19,000/- and market value of Rs. 1,11,96,000/- seized from Room No. 201 of hotel Delhi Pride, Karol Bagh, New Delhi under Punchnama and seizure memo dated 18th July 2014. Further, penalty was proposed including on these appellants under Section 112 of the Customs Act for the alleged acts of omission and commission. 11. The show cause notice was contested by these appellants wherein they had also prayed for. The cross-examination which was allowed. 12. Mr. Sanjay Sehgal who runs travel agency in the name and style of Eccess India Hotels Pvt Ltd. stated that he had booked the hotel accommodation at the request of Mr. Sameer and had received the payment in cash. He further stated that he had never met Mr. Sameer. Further stated that he has received the payment for room booking from Mr. Rashool in cash, or the person who stayed in the hotel. 12.1 In his cross-examination. Mr. Rajeev Kumar stated that his statements recorded by the DRI officers on 18th & 19th July 2014 are not true and correct. The said statements were forcefully got signed from him after being physically abused and by use of abusive language by the officers. Act....
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....ecorded from him on 19th July 2014 is also not voluntary and has been recorded as per the whims and under the dictation of the officers. 14. In his cross-examination recorded on 22nd November 2016, Mr. Rajeev Kumar in answer to the question-how does he know Shri Pawan Kumar Arora. He answered that he was his employer and he had been working with him during the period 2009 to 2014. In answer to question what he was doing in Hotel Pride on 18th July 2014, he answered that he had gone there in search of a part-time job. In answer to the question, if he knew the Philippines nationals namely Mr. S.B. Taha and Ms. A.J. Macud, he answered that he had never met them earlier. In answer to question where was Mr. Pawan Kumar Arora on 18th July 2014, he answered that Mr. Arora was out of station. In answer to question, if he went to hotel Pride under instructions of Mr. Pawan Kumar Arora, he replied in the negative. Further stated that his statement recorded by the officers on 18th and 19th July 2014 is not voluntary and the same was recorded under force and pressure. 15. In his cross-examination Mr. Amrit Pal alias Shunty which was held on 22nd November 2016 is stated that he was working wi....
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.... adjudicating authority observed that the seized gold bars have foreign marking - 'Kaloti Dubai'. Further it was accepted by Mr. S.B. Taha and Miss A.J. Macud both from whose possession it was recovered and seized, that they have brought the same to India by flight without declaring the same to the Customs. Thus, under provision 123 (2) of the Customs Act, the onus to prove that the seized gold was not smuggled, was on Mr. S.B. Taha & Ms. A.J. Macud, who have failed to discharge the onus. It further appeared that the two Filipino nationals had smuggled the gold into India for delivery and thus Mr. Pawan Kumar Arora and other persons namely Pradeep Patil, Rajeev Kumar, Mr. Sameer and Mr. Amrit Pal have connived and abetted in the smuggling of gold. It was further observed that Mr. Pawan Kumar Arora is the main person who has had hatched a conspiracy in association with the other co-accused for smuggling of foreign origin gold. He further observed that Mr. Pawan Kumar Arora was the intended recipient of the 4kg gold smuggled by the Filipino nationals into India. He further observed that the other persons namely Pradeep Patil, Rajeev Kumar, Amrit Pal and Mr. Sameer have abetted with M....
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....y 2014. Further urged that there is no basis for imposition of penalty on him and the same is fit to be set-aside. In support of his contention that a person cannot be penalised solely on the basis of statement of the co-accused, he relied on the following rulings: - (i) Birendra Kumar Singh Vs. CC, Lucknow-2006(198) ELT 460(Tri. Del); (ii) Narayan Das Vs. CC, Patna-2004(178)ELT 554 ITri. Kol) (iii) Sharad Dugar Vs CC, New Delhi-2003 (151)ELT 321 (Tri. Del.) (iv) Mahabir Prasad Vs. CC, Patna-2000(126)ELT 803 (Tri.) 21. The other two appellants Mr. Rajeev Kumar & Mr. Amrit Pal had also filed appeal before the Commissioner (Appeals) inter alia on the ground that there is no corroborative evidence against them, except their statement which was recorded during investigation and the same has been retracted at the first available opportunity before the learned C.M. Magistrate. Further the outcome of the cross-examination has not been considered. The reliance placed by the Adjudicating Authority on the retracted statements of the co-accused is erroneous, there being no corroborative evidence. These appellants were not found in possession of the gold at any point of time, further ....