TaxTMI 
TaxTMI 
2023 (9) TMI 415
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....sion, he was unable to produce any documents regarding its licit procurement. On further interrogation, Babu Ram informed the officers that the seized gold bars were imported and he received the same at Kolkata and going to deliver the said bars to Shri Anil of Karol Bagah, New Delhi. He further informed that the actual owner of such gold bars was Mr Neeraj Agrawal, proprietor M/s Raj Shree Jewellers, Mirzapur. The officers recorded the statement of Babu Ram on 01/02/2018 under Section 108 of the Customs Act 1962 and the officers arrested him under Section 104 of the Customs Act 1962. 3. Follow up search was conducted by the officers at the premises of Shri Neeraj Agarwal prop of M/s Raj Shree Jewellers at Basnahi Bazar Mirzapur U.P on 06/02/2018. During the search operation, the officers found delivery Challan Book, invoices, bank statement & copy of a letter issued by Neeraj Agarwal. 4. Thereafter, summons was issued to Mr Neeraj Agarwal, Shri Vinod Kumar & Mr Vijay Kumar, the other employees of Mr Neeraj Agarwal. It is pertinent to mention that no follow up investigation was done by the department from whom Babu Ram had procured the gold at Kolkata, as appears from the SCN. Th....
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....hrough an approved agency. Thus how the department has concluded that the seized gold bars were of foreign origin, without verifying the purity of gold. The allegation that the seized gold was of foreign origin is not sustainable in the eyes of law. 6.3 Mere foreign marking on the gold does not by itself establish the smuggled nature of the goods. It can at best establish the foreign origin of the goods. He relies on the following judgments in support of his contention, namely:- i) Naved Ahmed Khan v. CC, Bangalore [2005 (182) E.L.T. 494] ii) Jitendra Pawar v. CC, Raipur [2003 (156) E.L.T. 622] iii) CC, (Prev) Kolkata v. Monoranjan Banik [2004 (165) E.L.T. 237] 6.4 That the department has built up its case entirely on the ground that the seized gold contains marking which belongs to a foreign country , hence the seized gold was of foreign origin and smuggled, whereas mere markings cannot be taken as proof of the gold being of foreign origin, because markings and labels are only hearsay evidence. In this regard the appellant places reliance on STATE OF MAHARASHTRA Vs PRITHVIRAJ POKHRAJ JAIN 2000 (126) E.L.T. 180. In this case it was held that the markings do not speak for....
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....proof under Section 123 of the Customs Act. Now the onus shifted on the department to establish that the gold seized from the appellant was smuggled into India. 6.8. That the Department did not bother to inquire about the seller of the gold bullion; none of the documents which were produced by the Appellants have been discredited by the department. Since the purchase invoice is available on the GST portal, there was no need to make a detailed inquiry from the seller of the gold. From day one, department proceeded on unwarranted assumptions, presumptions, surmises and conjectures and the entire proceedings lacks legal sustainability. In this regard the appellant relies on following Rulings: a. Sitaram Sao v. State of Jharkhand - 2007 (12) SCC 630. b. Mridul Agarwal v. Commissioner of Customs, Lucknow, 2018 (362) E.L.T. 847 (Tri. - All.) c. Shantilal Mehta v. UOI and Others, 1983 (14) E.L.T. 1715 (Del.). d. CCC (P) v. Prabhash Kumar Jalan, CESTAT, Kolkata Bench, Final Order No. 75500/2021, dated 27-8-2021. e. Shri Sarvendra Kumar Mishra v. Commissioner of Customs Vide Final Order Nos. 70198-70199/2021, dated 6-9-2021. f. Nand Kishore Modi v. Commissioner of Customs ....
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....uggled nature of the gold. Admittedly, it is the case of town seizure, as Mr. Babu Ram have been intercepted by the DRI officers at New Delhi Railway Station, while he was on board the train. Further, there is no basis and it has been vaguely stated by Mr. Babu Ram, that according to his knowledge gold bars are brought from Bangladesh and thereafter, they are traded in Mirzapur by method of erasing or removing the foreign markings. 6.12. Learned Counsel also states that in spite of immediate retraction at the very first opportunity, the Adjudicating Authority/ Court below failed to examine Mr. Babu Ram in the adjudication proceedings. Thus, in view of the violation of the provisions of Sec 138B also no reliance can be placed on the retracted statement of Mr. Babu Ram. Reliance is placed on the following Rulings: i) Jindal Drugs Pvt Ltd vs UOI [2016 (340 ELT 67 (P & H)] ii) Andaman Timber Industries [2015 (324) ELT 641 (SC)] 6.13. He has also urges that the whole proceedings are initiated as SCN has been issued and served after more than six months from the date of seizure. Admittedly, date of seizure is 31.1.2018. The SCN is purportedly issued on 19.7.2018 but the same was ne....