AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2023 (9) TMI 728
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Customs House after issuing spot summon on them. 6 pcs. of gold bars believed to be of foreign origin having inscription "PMAP SUISSE 1 KILO GOLD 995.0 PMAP ESSYEUR FONDEUR" with tampered Sl.No. were recovered from the packets in the bag with them. The value of the goods was assessed as Rs. 1,68,58,500/-. The said gold was seized on the same day on a reasonable belief that that the gold bars had been smuggled into India through an unauthorized channel and is liable for confiscation. In the statement recorded in the said date, the Appellant Nos. (1) to (4) stated that they were gold carriers of Appellant No. (5) and the impugned gold has been obtained by them on 18.05.2015 from Shri Sashikant Patil @ Banti at Dhanalaxmi Bullion Pvt. Ltd., 43 Nalini Seth Road, 1st Floor, Room No. 101, Sona Patty, Kolkata-700007. They proceeded for Howrah Station on 19.05.2015 to Board the Chambal Express. At the time of search, they were not having any documents with regard to ownership of the gold. It is stated that the said gold is to be handed over to Appellant No (5). They were arrested and produced before the CMM, Bankshal Court on 20.05.2015 and bail was rejected. 2.1 On 19.05.2015, the Cu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... No. (5) and also accepted that he has sold 6 kgs of gold to Appellant No. (5) against the invoices and tendered the payment related documents. 2.6 On 15.02.2016 and 16.02.2016, the Appellant No. (1) to (4) stated before the Superintendent of Customs that the seized gold were given to them by Appellant No. (5) at Allahabad for the purposes of getting gold jewellery in exchange of the said gold from Kolkata and the statements given by them on 19.05.2015 is not proper and not voluntary. Thereafter, a show-cause notice was issued to all the Appellants on 28.04.2016 for confiscation of the seized gold and imposition of penalty under Section 112 (b) and 114AA of the Customs Act, 1962. The said show-cause notice was contested by all the Appellants, but the adjudicating authority passed the following orders : (i) I order for absolute confiscation of the seized 06 (six) pieces of smuggled gold bars of foreign origin having total weight of 6 (six) kgs. and valued at Rs. 1,68,54,000/- under Section 111 (b) and Section 111 (d) of the Customs Act, 1962. (ii) I order for confiscation of the 03 (three) clothen pockets especially designed for carrying smuggled gold bars of fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld. Counsel appearing on behalf of the appellants, submitted that the ownership of the impugned gold has been claimed by the Appellant No. (5), who has purchased the said gold from Appellant No. (6) through proper Invoices and also placed the copies of invoices issued by Appellant No. (6) on record. The Appellant No. (6) also joined the investigation and submitted all records of purchase, sale invoice, bank statements etc., which certifies that the impugned gold has been sold by the Appellant No. (6) and the payment of the same was made by Appellant No. (5) through proper channel. Therefore, the Appellant No. (5) has also discharged the burden in terms of Section 123 of the Customs Act, 1962 as it has been disclosed the source of procurement of impugned gold and also payment particulars, which was made by through banking channel. He further submitted that initially, the Appellant Nos. (1) to (4) have submitted that they have acquired the possession of the said gold from Mr. Sashikant Patil, but later on, they have stated that they have received the said gold from the Appellant No. (5), Shri Rinku Verma and the revenue proceeded to investigate the matter further to reveal the truth.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lant No. (5) has procured the invoices from Appellant No. (6) to make legalized the transactions and the possession of the seized gold is afterthought. Therefore, the said documents cannot be relied upon. To support his contention, he relied upon the decision of the Hon'ble Patna High Court in the case of Md.Akhtar Vs. Commissioner of Central Excise, Customs & Service Tax, Patna Vs. 2015 (323) ELT 136 (Pat.), which was upheld by the Hon'ble Apex Court as reported in 2015 (323) ELT A-27 (SC). He also relied on the decision the Tribunal in the case of R.K. Angangbi Singh Vs. Commissioner of Customs (Prev.), Shillong reported in 2018 (361) ELT 1062 (Tri.-Kolkata). He also relied on the decision of the Hon'ble High Court Kerala in the case of Commissioner of Customs, Cochin Vs. Om Prakash Khatri reported in 2019 (366) ELT 402 (Ker.) He also submitted that the Appellant Nos. (1) to (4) were failed to discharge their onus in terms of Section 123 of the Customs Act, 1962. He, therefore prayed that the impugned order is to be upheld. 5. Heard the parties in detail and considered the records placed before us. 6. We find in this case, initially at the time of investigation on 19.05.201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also stated that these gold biscuits are believed to have come from Bangladesh. Shri Joy Gopal Biswas in his first statement also stated that these foreign marked gold biscuits were obtained from one Joynal for the fourth time. By another statement dated 22-9-2000 of Shri Joy Gopal Biswas, recorded by the investigation in Judicial custody, it was stated that these 60 gold biscuits were handed over to him by his younger brother Shri Nitya Gopal Biswas. Shri Nitya Gopal Biswas also lodged his claim and produced a purchase Bill No. 422, dated 29-8-2000 from one Shri Laljibhai K. Soni, a gold dealer of Ahmedabad. Investigation accepted the statement and followed the Ahmedabad trail by carrying out the investigation at Ahmedabad in detail to refute the claim of Shri Nitya Gopal Biswas. Department never took any initiation to carry out any investigation to trace out whereabouts of Joynal named by Shri Joy Gopal Biswas in his statement dated 5-9-2000 which Revenue is claiming it in their favour. The very fact that the present consignment was the fourth one received from Joynal by Shri Joy Gopal Biswas, investigation should have taken further details about the correct address, mobile numbe....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Gold is routinely presented to temples and to relatives on ceremonial occasions. It is customary, even mandatory that a bride is given away with gold ornaments. The demand for gold in India is perennial. There was only one gold mine operating at Kolar near Mysore which would produce about 2 tons of gold every year. That has also stopped functioning. The gap between rising demand and scant supply was invariably filled by smuggling. Estimates vary but it is expected that during the 80s on an average 250 Tons of gold was smuggled into India every year. Any smuggling is bad for the economic health of the country as it would defeat the very purpose behind imposition of restriction on import. The case of gold is more acute. Unchecked smuggling of gold would threaten the very stability of the country's currency. There was a time when the paper currency in the country was backed fully by the gold held by the Govt. Over the last century the basis and the support for the currency has shifted from Gold reserves to the country's assets. But every Central Bank still keeps a gold reserve called Monetary Reserve. Thus, gold in the hands of the Central Govt. would make the currency stron....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l numbers on the gold bars it became impossible to distinguish the gold imported legally and that imported illegally. 7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any registers nor is there any requirement to issue invoices under any Central Act." 6.5 CESTAT, Kolkata in the case of Giridhari Dubey v. C.C. (P), Kolkata [2001 (11) LCX 0215) = 2002 (149) E.L.T. 427 (Tri. - Mumbai)] also made following observations in para 3(c) of this order : In "(c) view of our findings we would set aside the order of confiscation of 32 pcs. of gold also relying at the findings of this Tribunal in the case of S.K. Chains reported in 2001 (127) E.L.T. 415 wherein in P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sold in India is of smuggled nature. Retraction of the earlier statement of Shri Joy Gopal Biswas by a second statement, recorded by investigation in judicial custody, has to be seen in the light of Supreme Court case law of Vinod Solanki v. U.O.I. [2009 (233) E.L.T. 157 (S.C.)]. Hon'ble Apex Court made following observations on the issue where retraction can be accepted. A "34. person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in his statements had shown copies of the invoices to the Officers of DRI, evidencing sale of gold by [M/s. Paras Bullion and M/s. Pavan Jewellers] to respondent No. 1. Besides, the bills showing the acquisition of gold from [M/s. Paras Bullion and M/s. Pavan Jewellers] were also produced with the bail application on 10th March, 2000 filed by respondent No. 1;" Thereafter, the Hon'ble High Court has held that the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.3 Further in the case of Gopal Prasad, the Tribunal has found that the documents produced for procurement of impugned gold were not found to be false and seller of the gold confirmed the sale, the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.4 In the case of Nand Kishore Sumani (supra), the Tribunal held that when the purchase bills were furnished and the same was confirmed by the seller, the burden under Section 123 of the Customs Act, 1962, has been discharged. 6.5 Further we find that this Tribunal in the case of Hari Manthan Jewellery House Private Limited (supra), has held that when the purchase bills were produced, which were confirmed by the seller of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Section 123 of the Customs Act, 1962, in respect of the seized/confiscated foreign marked gold; ownership of which has been rather at a much belated stage, claimed by the appellant No. 5- Rinku Verma, of Allababad. 13. The Hon'ble brother Member (Judicial) in view of the invoices tendered by appellant No. 5 (Rinku Verma) towards his claim of the said seized/confiscated gold showing its purchase from appellant No. 6 -Pradeep Kumar Bothra, who also has at a rather quite belated stage joined the investigations and submitted to the authorities the purported records of sale/purchase/payments etc. towards the seized gold for perusal and necessary action by the authorities and based on the decisions in the following cases :- 1. Nitya Gopal Biswas vs. Commissioner of Customs (Prev.) Kolkata [2016 (344) ELT 209 (Tri.-Kol.)] 2. Ratan Kumar Saha vs. Commissioner of Customs, Patna [2021 (375) ELT 435 (Tri.-Kol.)] 3. Union of India vs. Imtiaz Iqbal Pothiawala [2019 (365) ELT 167 Bom.] 4. Gopal Prasad vs. C.C.E., Customs & S.T., Patna [2018 (362) ELT (309) (Tri.-Kol.)] 5. Nand Kishore Sumani vs. Commr. Of Cus., C.Ex& S.T., Siliguri [2016 (333) ELT 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ery of the said 6 kg. of foreign marked gold. The accused, in their initial statement recorded at the time of seizure of gold on 19.05.2015 (all 4 of them) have tendered an almost identical version about the said possession and recovery of foreign marked gold. Thus in the initial statements only, all four of the accused appellants 1-4, namely Golu Verma, Saurabh, Shubham Verma, Rajendra Kumar Dhuriya, have divulged the name of one Rinku Verma of Allahabad for whom they acted as carriers, with all of them admitting to have worked for Rinku Verma multiple times in the past. Of these Rajendra Kumar having acted as a carrier for Rinku Verma for the maximum length of time i.e. upto 20-25 times in the past, from Kolkata. The four accused intimated that they had collected the said gold bars from one Shashi Kant Patil @ Banti at Dhanlakshmi Bullion Pvt. Ltd., Sonapati, Kolkata on 18.05.2015 and were returning to Allahabad to hand over the said gold to Rinku Verma. All of them though have intimated to have worked as carriers in the past as well for Rinku Verma, ranging from 6 months to about 4 years. There is thus complete unanimity in material particulars as well as in substance in the inf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rds the said seized gold from Shashi Kant Patil (note the earlier statements stand re-confirmed and there is not an iota of change in the admissions made even after over two months of the date of seizure and arrest of the 4 accused). 14.08.2015 Shashi Kant Patil fails to honour the summons issued for the third time 23.09.2015 Rinku Verma, who later claims ownership of the said seized gold fails to appear before the authorities despite service of summons each time and over 4 months of the seizure of the gold to which he claims ownership. 12.10.2015 The four carriers in response to a communication issued under Section 150 of Customs Act for pretrial disposal of gold under Section 110((1A) of the Customs Act, submits that the same be returned to Rinku Verma. Rinku Verma for the first time claims the seized gold vide his letter dated (not on records and not known). (It is for the first time that Rinku Verma has claimed ownership of the seized confiscated 6 kg. of gold, valued at Rs. 1,68,54,000/-, after nearly 5 months of the seizure. It is therefore of interest to note that claiming ownership of such high valued property (6 kg. of gold), is for the first time emanati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 19.05.2015 and 28.07.2015 were incorrect. They also claim lack of knowledge about Pradeep Kumar Bothra or Snehal Gems Pvt. Ltd. They denied having knowledge of the source of the seized gold (note the contrary stand taken by the 4 carriers for the first time vis-à-vis their earlier statements tendered). It is also to be noted that there is near unanimity again this time around in the statements of each of the 4 accused. The letter submitted in this regard is suggestive of the contents thereof rendered upon advice and tutorship. Also there is no explanation/reason whatsoever, for the grossly delayed change in version/retraction. and an imperfect retraction made after nearly 9 months of seizure. 18. From the aforesaid chronology and the flow of events in the matter, it is amply clear that the course of action and conduct of all accused has thereafter proceeded, post seizure, in a manner so as to cover up for the time required for assemblance of documents evidencing legal possession of the foreign marked gold. The conduct of Rinku Verma as also others in repeatedly dishonouring summons and the deafening silence maintained all through for initial five months of the inv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion as could cast a shadow of doubt on the spontaneity and veracity, bonafides and truthfulness of their statements. The said fact is also recorded in the order of the Magistrate. This undisputedly upholds and sanctifies the voluntary nature of the statement recorded by the authorities at the time of seizure of 6 kgs of foreign marked gold and its reiteration at a later date. The initial statement dated 19.05.2015 and its reconfirmation statement, were however given a twist, stating that the initial statements were wrong. All this came to be done well beyond a reasonable length of time after nearly nine months and without any plausible explanation for the same. The said change in instance are therefore clearly discountable as being tutored, managed, involuntary and an afterthought and therefore hold no evidentiary value. Also it is established law that statement tendered before a Customs Officer is in the nature of substantive evidence and culpability of the accused can even be based solely thereupon. The contradiction in the testimonies of Shashi Kant Patil and Rinku Verma is self evident. Thus when quizzed for telephonic calls between him and Rinku Verma, as obtained from CDR, Sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....til. The reiteration of this statement tendered well after their release from judicial custody of nearly two months which certainly would have had its own psychological, moral, physical and financial toll on the four accused therefore displays a sense of conviction, a sense of truthfulness, a sense of honesty and above all a sense of the actual happening. The original statement duly reinforced can therefore not be washed off or its impact lessened in any degree of reliance, by a plain and significantly delayed improper retraction tendered perhaps on the basis of legal advice received and may be a certain kind of pressure/inducement put forth by Rinku Verma on the four of the said accused appellants. 22. It is further of interest to note that as the four accused - appellants 1-4, viz. Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Verma, were mere gold carriers, they obviously did not have any locus to object to the pretrial disposal and seek the return of the seized gold to Rinku Verma and what is noteworthy herein that such correspondence is taking place nearly five months after the seizure of 6 kg of foreign marked gold, valued at Rs. 1.68 crore, the person claiming to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold, [and manufactures thereof,] watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify". 25. This rule being in the nature of an exception as carved in law, goes without saying has to be thus construed with the rigors it deserves and any proof tendered thereto has to be evaluated in terms of all the elements and connected, co-ordinated and co- related with stray pieces of evidence as mentioned in earlier paragraphs. After the initial burden of acquisition of reasonable belief has been discharged by the prosecution, it is for the accused to establish lawful importation and acquisition of the foreign marked gold, recovered from their possession or the claimant thereof. DOCUMENT ANALYSIS 26. Further, it be noted that the purchase of said 6 kg. of seized/confiscated gold, as imputed by Rinku Verma, made against 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., viz. Invoice No. & Date Quantity (in kgs. as well as number of bars.) 1. GOLD/MAY/1/2015-16 - 02.05.16 - 1 (One) 2. GOLD/MAY/2/2015-16 - 05.05.16 - 2 (Two) 3. GOLD/MAY/3/2015-16 - 09.05.16 - 2 (Two) 4. GOLD/MAY/4/2015-16 - 12.05.16 - 1 (One) Thus is it sheer coincidence or it has been so planned based on the wisdom of Rinku Verma and advice as he may have received from various corners that the purported invoicing is done in a manner as could camouflage the recovery made. The sequencing of the invoices as No. 1, 2, 3 and 4 between 2.5.16 and 12.5.16, establishes that there were no sales of gold in between to any other customer and designed so as to conveniently fit the four entries in the ledger records in the end. 28. It certainly cannot be the case that Snehal Gems Pvt. Ltd. have not made sale of gold to other customers during a 10 day period between May 2 and May 12. Thus it was all so managed to sort of sanitize the books of accounts of Snehal Gems so as to forsee minimalistic enquiries into the matter. The fact that no evidence of any previous sale of gold by Snehal Gems to Rinku Verma is tendered by either of the two sides, as to buttress ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Rinku Verma was the very same gold seized by the authorities. Both Pradeep Bothra and Rinku Verma failed to explain anything about the said tampering and scrapping off the numbers printed on the gold bars. Further, like the cooked up evidence analysed in previous paras another aspect of intrigue and interest is to note that even as regards payment to have been made over by Rinku Verma to Pradeep Bothra, the latter could not confirm whether he had received complete or full and final payment towards the alleged purported sale of the said gold. Above all, most important is the categorical admission by Pradeep Bothra, Director of Snehal Gems that he was not in possession of any import documentation in support of licit import of the foreign marked gold. This singular admission of Pradeep Bothra is the proverbial nail in the coffin to conclusively establish that there was no licit import of the seized/confiscated gold at all in the first place and all their efforts at preparation of fictitious sales deal and documentation were no more than mere ivory towers. It establishes the ill machinations and designs to cover up for the purported seizure of 6 kgs of foreign marked gold and attempts....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this is by the fact that the amount involved in the matter is insanely very high that cannot be left to be ignored, by anyone least of all by a person who has been in the industry for quite a while. PAYMENTS-supposedly made 32. From the records tendered by Rinku Verma to cover up for the illicit possession of foreign marked gold and demonstrate it as a licit possession, its remarkable and again quaint to note that the payments in respect of the said gold have been accounted for in the books of accounts after several months of the date of seizure and the fact as comes out from the account books is that Rinku Verma was not even a regular customer of Snehal Gems (merely being a one time purchaser). As evident from the records tendered, the payments for such sale were made between 19 August 2015 and 22 September 2015 (i.e. after three months from the date of seizure and upto four months of the said date) and beyond four months of the allegedly stated date of sale/purchase. No reasons have been conveyed for this inordinately long time for payment towards purchase of gold essentially as a credit sale, by either of the two viz. Rinku Verma or Pradeep Bothra. Also, as per the financi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rted gold seized/confiscated. These latches clearly prove that the evidence tendered in support of licit possession are no more than a massive cover up, clearly crafted skullduggery and complete manipulation. The lid of the cover up operation is blown off, in response, when to certain specific questions raised to Pradeep Bothra for the foreign marked gold as indicated below - the responses point out the exercise at attempted falsification, fabrication, fakery and presenting a fictionary fable as a fairy tale response. Q. 10. Can you provide the any import documentary regarding seized gold? Ans. No Q. 11. The gold bars gold to Shri Rinku Verma do not contain any Sl. No. as the same were tampered, can you state the reason for tampering? Ans. It is not possible for me to confirm this Q. 12. State the source of acquiring of gold sold to Srhi Rinku Verma? Ans. Local Purchase from Dealers. Q. 13. Did Shir Rinku Verma make payments regarding purchase of gold seized for 6lcg gold bars. Ans. I have submitted the payment related documents, which confirms the payment towards the gold sold to him, however it cannot be conf....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... demonstrated in paras foregoing. 38. As is well known that when things are undertaken merely to cover up for something which is non-existent, there is always room for omissions. Thus it may be noted that the prepared invoices/bills submitted to the department by Rinku Verma in support of his claim to licit acquisition of foreign marked gold are grossly incomplete in details. The purported invoices submitted do not even indicate the brand of the gold sold or the marks and number of the gold bars. Apart from the fact of not mentioning of the marks and numbers inscribed on the gold bars, all that is mentioned in the invoice is the gross weight in grams and the purity of the gold bar as 995. This is done with an eye to prevent investigators to easily ascertain the truth about fabrication of the invoices. Further, the number of each of the seized-1 kg gold bar is obliterated, scratched out and deliberately tampered. Again done with clear intents to digress and derail, deviate and divert the investigations. The appellant in the plethora of documents filed as part of his paper book evidencing business transactions (sale and purchase) of gold and diamonds of Snehal Gems - could not and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to happen when attempting and working at a coverup for a major lapse and attempts at legitimizing the illegality. The invoices merely indicate the collective weight in gms. of gold bars, without indicating their individual weight or number and the markings thereon i.e. of the individual gold bar that was allegedly (at least on paper) said to be sold to Rinku Verma. Also it is unheard of a six kg foreign marked gold bar. It is too well known that if the invoice is not a coverup for the gold bars, it would separately indicate weight of each gold bar sold and not mention the collective weight thereof. This is not a trade practice nor workable and affordable in day to day business practices of precious metals. These vital pieces of missing links completely puncture and demolish the appellant Rinku Verma's theory of the legal possession of the seized foreign gold. 40. It is intriguing to note that for a secondary supplier Snehal Gems while a plethora of copies of various financial transactional statements, invoices etc. are all tendered as part of paper book(from Feb. to Sep-Oct. 2015) however, in respect of the parties primarily connected in the impugned appeal-particularly Rinku V....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts were false, incorrect or forged in nature and therefore non-relevance of the said documents claiming them to be an afterthought and fabricated was unwarranted. 44. In reply to the show cause notice, it has been submitted by Rinku Verma that the lawful possession of gold under seizure came to be established by way of submission of the purchase invoice and receipt of payment having been acknowledged by the seller of the gold. As for non submission of import documents and the non submission of documents relating to payment were concerned, it was his contention that the same should be ascertained from Snehal Gems Pvt. Ltd. It was his contention that having tendered these purchase documents, he had completely and satisfactorily discharged his onus under Section 123 of the Customs Act. Admitting the change in stance of the four accused appellant No. 1-4 viz. Rajendra Kumar Dhulia, Saurabh, Shubham Verma and Golu Verma, it was merely his contention (Rinku Verma) that in subsequent statements dated 15/02/2016 of Rajendra Kumar Dhuriya and Saurathand dated 16/02/2016 of Shubham Verma and Golu Verma the four accused had intimated that the gold was handed over to them by Rinku Verma fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rabh, Shubham Verma and Golu Verma did not anywhere indicate that voluntary initial statement recorded on 19.05.2015 and subsequent statement dated 28.07.2015 indicating procurement of the said gold from Shashi Kant Patil of Sonapati, Kolkata, were not voluntary and true or were tendered under duress. They merely stated that the said statement was incorrect. CHANGE in STANCE and INVALIDITY of ALTERED VERSION 47. Appellants 1-4 namely Shubham Verma, Golu Verma, Rajendra Kumar Dhuriya and Sourabh had in their initial statements dated 19.05.2015, tendered before the gazetted officer of Customs have furnished a wealth of information to which they alone can be privy to. This includes information, both about material facts like obtaining of foreign marked gold without cover of any documentation, payments made thereto, details of persons, addresses, phone numbers both for persons from where such foreign marked gold was procured, as well as for whom it was meant to be delivered to, details of their employment and for whom they worked for, the monetary compensation they received for their job, the period for which they have been working, the number of such previous trips undertaken et....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d holds no legal force. Refuting the same by way of a statement, this late in time also is of no help to the facts of the case. Further, it is observed that the four accused appellants No. 1-4 viz. Golu Verma, Saurabh, Shubham Verma, Rajendra Kumar Dhuriya, had no clear explanation whatsoever, to state as to why the earlier two statements were incorrect and involuntary. It is settled law that any retraction to be valid has to be tendered at the first available opportunity while in the present case there is only a further reiteration and reconfirmation of the earlier version narrated, confirmation of material facts like places of business, telephone numbers of conspirator and prime accused which upon verification were found to be correct and several other important details. No complaint was made about atrocity, duress, coercion, inducement or the like before the Magistrate. Hence the retraction or rather the modified version (nine months later), is certainly an afterthought, made at the behest of none else but Rinku Verma - the claimant of the said seized/confiscated gold, based upon expert/legal advice rendered. It thus is neither voluntary nor truthful in its contents and is there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tter can be sought to be attempted with the aforesaid case in view of (a) above. Besides, it may be observed that there is a time lag of nearly two months between time of seizure and that of submission of the documents in this case and which time lag is duly accounted on account of health condition of the accused, being a heart patient. It is noteworthy to mention that the transaction made, as stated in the initial statement of the accused at the time of seizure was found to be so recorded in the Books of Accounts. As an aside, it be also noted that the total value of the seized goods was far less. Thus these differences in factual content have no bearing and influence upon my findings, in the present appeal. Thus the ratio of this case law cannot be relied upon and applied to the present case. (iii) Union of India Vs. Imtiaz Iqbal Pothiawala. The evidence towards legitimate possession of the 575 gold bars was submitted within less than 24 hrs., of seizure i.e. on the very next day of the seizure and in fact around the time the statement of accused was recorded on 09.03.2000. This was further corroborated almost real time. Briefly, the facts of the said c....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Paras Bullion. It was further pointed out in his statement that he also conducts business of M/s. Paras Bullion for and on behalf of its proprietor Mr. Vijay Patel;" (Emphasis Supplied) It may thus be noted that in this case too there is virtually no time lag in the submission of the documents evidencing legitimate possession. Therefore, the ratio of the law as pronounced by the Hon'ble Bombay High Court, cannot be adverted to in the present case. (iv) Gopal Prasad Vs. Commr. of Central Excise, Cus. & S.T., Patna. From the facts of this case, it is evident that the seizure of precious metal was made by SSB officers and subsequently, handed over to the Customs on 20/04/2014. It is recorded in this order that Gopal Prasad who claimed ownership of the said goods on 10/05/2014 had handed over the bills through the accused person to the authorities on 20th April 2014 itself but the said officials tore of the Bill. It is therefore evident that there was no time lag, whatsoever in demonstrating the legitimate possession of the gold under seizure. Para 5 of the said order is reproduced for purpose of greater clarity. "I find from the impugned order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the seized gold originated from Bangladesh. That the being the case, it is very clear that the facts of this case are entirely distinct. The ratio of this case law therefore, would have no bearing with the present matter. (vi) Hari Manthan Jewellery House Pvt. Ltd. Vs. Commissioner of Customs (Prev.) Patna Final Order - 75480 -75484/2022. The DRI in the present matter had caused a search at Agarwal Gold House on 27/28 February 2014, However, the documents for licit acquisition of gold in the matter were tendered on 26 March 2014 to the DRI - i.e. after about three weeks of search and seizure operation. Contrary to the present case involving a time lag of over 5 months, in the impugned matter there is no significant time difference in producing the same before the authorities, to evidence the licit acquisition of gold. In fact as has been noted in Para 12 of the said Order, the Appellant therein Vikash Agarwal, Proprietor of the Agarwal Gold House had on the day of seizure itself claimed the ownership of the seized goods, unlike the present matter wherein the original claimant surfaces after five months of seizure. Evidence indicating final transaction thereof was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... statement. Section 123 of the Act, inter alia, provides that the burden of proof that the seized goods are not the smuggled goods lies on the person who claims to be the owner of the goods seized. Thus, the burden to prove that the seized gold was not smuggled by upon the Owner. The Tribunal has erred in shifting the onus of proof upon the Customs Department. The Tribunal has also erred in holding that the statement given under Section 108 of the Act once retracted was not admissible in evidence, particularly because before the carrier was produced before the Chief Judicial Magistrate he was in custody of the Customs officials for more than 24 hours. The Tribunal, however, has overlooked the fact that the Carrier, when produced before the Chief Judicial Magistrate on 24th April 1996, did not complain of atrocity, duress or coercion. The learned Chief Judicial Magistrate has recorded a categorical statement to that effect in his order. We have noticed a statement of retraction given by the Carrier on 28th April, 1996. According to us the said retraction was an afterthought. Had the Carrier given the statement under Section 108 of the Act under coercion he would have made complaint ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plea. It is seen that admittedly after the appellant gave his statement, he was produced before the Magistrate though no complaint was filed and was released on bail. He did not complain to the magistrate that Ex. P-4 statement was given under inducement, threat or duress. It was raised only subsequently making accusations against PW-5, the Inspector of Customs. Therefore, obviously it was only an afterthought. The High Court, therefore, rightly has not given any weight age to the same. It is true that the magistrate has given various reasons for disbelieving the evidence of PW-3, the panch witness who had also, at one point of time, indulged in smuggling. It is unlikely that PW-3 would bring 200 gold biscuits of foreign marking and conceal them in the compound of the appellant without appellant's knowledge for safe custody. It is not his case that he had facilitated PW-3 in concealing them in his compound. The place of concealment of the contraband is also significant at this juncture. It is just near and visible from the window of his bed- room through which he or family members could always watch anyone frequenting the place where the contraband was concealed. This fact becomes ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retreated confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be exami....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh's case was referred to." 25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confession statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base conviction. However, the prude....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120 B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve. 31. It is seen that the contraband of 200 gold biscuits of foreign marking concealed in a wooden box and kept in the pit in the compound of the appellant was recovered at 9.00 a.m. on December 6, 1980 in the presence of Panch (mediator) Witnesses including PW-3. This is proved from the evidence of PWs 2, 3 and 5. There was nothing for PW-3 to speak falsehood against the appellant who is a friend of him. PWs 2 and 5 also wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....os and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore there is no illegality in the approach adopted by the learned Judge. We hold that the learned Judge was right in his findings....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of investigation and if produced at the relevant time, would have advanced the progress of the case. It is also seen that when confronted with the fact that the biscuits purchased by them from M/s G. Seal & Co. bear the marking of swisse whereas the biscuits recovered from the appellant did not bear any such marking. The appellants' explanation is of such marking have been erased by him so as to avoid any detection. As rightly observed by the adjudicating authority, if the biscuits in question have been legally purchased by him, out of legally imported gold, there was no justification for the appellant to tamper with the marks. The marks having been tampered with by him, the seized biscuits cannot be correlated with the biscuits claimed to have been bought by him from M/s G. Seal & Co. In this view of the matter, I find that the gold in question has been rightly confiscated by the authorities below and a penalty has been justifiably imposed upon the appellants. The impugned orders do not call for any interference. The appeal filed by the appellant is accordingly rejected." In appeal before the High Court at Calcutta the Hon'ble High Court held the drawl of adverse inference u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of appellant no '4'. The statement of appellant no. '2' also indicates that he informed the authorities that these gold biscuits were of smuggled nature. The authorities, during the search of appellant no. '2' did not come across any documentary evidence regarding licit possession of the gold biscuits. It was argued by the advocate for appellant that the appellant no. '2' had in his possession the photocopy of bill '12' dated 17-10-97 but the authorities refused to take cognizance of such bill. To my mind, this is not correct statement, in as much as that when appellant no. '2' was arrested and produced before the Chief Judicial Magistrate, no documents were produced nor there is any averment of the presence of the photocopy of the bill '12' dated 17-10-97. Further, I find that the appellant no. '2' had moved a bail application on 25-10-97, in which also he had not disclosed presence of the bill 12 dated 17-10-97 to indicate the licit possession of the gold biscuits. The appellant no. '2' also did not indicate in his bail application that the amount of Indian currency was towards part payment of the purchase of agricultural land. In the absence, of any such averments on the first i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. '2' being an employee of the appellant no. '4', could not have given any statement which is wrong and which can be inculpatory against his own employers, unless and until it is a fact. The statements recorded of appellant no. '2' on the spot do not indicate any duress or coercion which can be noticed from the fact, that on request from appellant no. '2', the authorities took him to a safe place i.e. the Division Office of the Customs Authorities in Bikaner for search and examination of his bag. I find from the records that the bill no. '12' dated 17-10-97 as issued by M/s. Dhan Cholia Sons, Delhi only takes about sale of 5 gold biscuits but does not indicate any marks which were found on the gold biscuits seized from appellant no. '2'. It is a common knowledge that the gold biscuits with foreign marking, if legally imported, carry unique markings on them, which is generally reflected on the invoices which are issued for sale of such gold biscuits. Learned advocate was not able to show from the records that the markings which were found on the gold biscuits tallied with the markings as indicated on the invoices on M/s. Dhan Cholia Sons, Delhi. In the absence of any direct evidenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tands unveiled, rendering all the accused liable for appropriate punitive action under the provisions of the Customs Act. The alteration of the initial version of the four accused carriers of gold, is nothing more than a futile bid to conceal this smuggled nature of the seized gold and avoid penal consequences in law. 55. In view of the aforementioned and the feeble and unsustainable bid of Rinku Verma (who claims ownership of said gold and failed attempt at legitimizing the procurement of 6kg of foreign marked gold), in cahoot with Pradeep Bothra is not legally sustainable. They for their contumacious conduct and clear mens rea are certainly liable for all consequences in law including punitive action against them. The order of the learned adjudicating authority therefore suffers from no inherent defect and is in accordance with law. There being no legal infirmity in the order appealed, I am of the view that the order of the learned adjudicating authority is legally sustainable and is required to be upheld as it's merits are unquestionable. In view of above and from the enquiries conducted it is clear, categorical and comprehensible that the concerted and clever attempt at crea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s that ought to have been looked into in the first instance, say within 24 hours of the initiation of the case are being requisitioned for almost after a month (27 days to be precise), reference to communications/correspondence carry no details of date of origin or date of receipt (e.g. refer para 26 of show cause notice), with several other glaring lapses. It appears that the departmental investigating officers, as also the supervisory officers were completely taken over by a laidback approach and were not serious enough at all in conducting the necessary investigations in the matter. It cannot get more casual than this that the first summon to the person who is alleged as the key person and, who claims the ownership of the seized/confiscated gold as belongs to him, and is the kingpin and mastermind of the entire racket is being sent, only after four months, despite his name having cropped up in the enquiries on day one i.e. the day of the seizure itself. Summons to another lead player, the alleged supplier of gold were initially issued, at the rate of one per month and subsequently investigations against him were given a complete go by. Necessary action for pretrial disposal of s....