TaxTMI 
TaxTMI 
2024 (2) TMI 1263
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....e order dated 24.03.2022 and the matter remanded to Commissioner (Appeals) for deciding the issue afresh after adhering to the principles of natural justice. The Ld. Commissioner (Appeals), once again upheld the order of the adjudicating authority. The operative part of the order reads as under: under : "32. I have carefully examined the case records, grounds of Appeal and also the written submission made by the Appellants at the time of personal hearing as well afterwards and during cross examination and legal citations into consideration and on the basis of above facts and still observe that the officers visited the premises and sized the subjected Gold biscuits on a reasonable belief that they were of foreign origin and smuggled into India. 33. The Appellants still could not convince lawful import or acquisition of the recovered gold. Based on initial statement, documents and sequence of documents and results of cross examination. I am of the view that the appellant does not have lawful possession over seized Gold and I am of the opinion that foreign gold in question was not imported into India by lawful means and thus the confiscation of the same is upheld and....
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....f gold biscuits of foreign origin were meant for him. The seized gold biscuits carried the foreign origin marks as "UBS Switzerland". Further, as it was noted by the seizing officers, that the Bills recovered from Santendro Panda on 18.08.1999, at the time of seizure did not carry any reference to the said "UBS" brand, they therefore felt that the legal possession of the gold biscuit was inexplainable, and the seized gold liable for confiscation under Section 111 of the Customs Act. 5. Subsequent, verification of the aforesaid four bills in question revealed them as not pertaining to seized foreign origin gold biscuits. In the meantime K. Prasad Rao Subudhi vide application received by the Department on 23.08.1999 (five days post seizure) claimed ownership of the seized gold intimating that the seized 20 tolas of gold were procured from Bherunath Bullion Corporation (BBC), Vizag vide Bill no. 03101 dated 16.08.1999 and Bill no. 03137 dated 17.08.1999 and that they were sent to Cuttack for making of gold ornaments. K. Prasad Rao Subudhi, the appellant herein, requested the Department for the release of the seized gold as it was licitly procured by him, from the above named licens....
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....e Court's directions. Be as it may to add another reason for disputing the statement tendered. We note that there have been some allegations made by the late noticee, in this regard. However, this being of no significance or relevance at this stage to the present appeal, we only make a mention of it on record so as to indicate the vitiated atmosphere in which the investigations were undertaken. Vide his letter dated 02.02.2000, we also note, that K. Prasad Rao Subudhi charged the Department of having presented and produced original bills alongwith attested true copies before the Deputy Commissioner on 09.09.1999 and that the originals were verified and returned to him, besides submitting true copies of other documents on 03.09.1999. The Department however, continued to summon K. Prasad Rao Subudhi for furnishing of original documents. In case the said documents were already tendered and verified by the Department, no fresh summons were required to be issued thereto. Further, it is recorded in the notice that contrary to the general norms and in view of the belligerent attitude and continuous non co-operation of K. Prasad Rao Subudhi, a copy of his statement dated 31.01.2000 and 01.....
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....the two copies of the one and the same document reveal that "UBS" has been interpolated in the photocopy of the invoice produced by Sri Bherunath Bullion Corporation, Visakhapatnam, whereas this "UBS" inscription in ink and hand written, does not exist in the certified copy of the invoice received directly from MMTC Ltd. As admittedly by the appellant, the word "UBS" have been interpolated in the delivery challan/invoice of MMTC Limited with the objective of linking the invoice to the seized gold. 10. We note that for a variety of reasons the conduct of smooth investigation into the present matter were badly obstructed, in the proceedings before the lower authorities. The noticee continued to maintain that they had procured 20 Nos. (200 Tolas) of customs, cleared (licitly acquired ) gold biscuits from BBC Vizag vide Bill No. 03101 dated 18.08.1999 and Bill No.03137 dated 16.08.1999. It is also on record that despite multitude of summons given to the said appellant, to produce the original copy of the said 2 bills/invoices, their receipt is nowhere acknowledged by the department and continues to be hotly contested by either side. The appellant also claimed ownership of the said 2....
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....eign marked gold biscuits cannot be accepted as valid documents in support of licit procurement/purchase of the gold biscuits and certainly do not pertain to the seized/sold confiscated. The two Bills of Bherunath Bullion Corporation (BBC) - 3101 dated 16.08.1999 & 3137 dated 17.08.1999 13. It is the departments contention that repeated attempts to verify the authenticity of the Bill Nos. 03101 dated 16.8.99 and 03137 dated 17.8.99 by the department came to a naught on account of alleged lack of co-operation of the noticee. The contents of the application dated 23.8.99 filed by the appellant for the release of seized gold biscuits also could not therefore be checked out. 14. The department further points out to the inherent contradictions in the statement tendered by the appellant before the authorities. Thus while at one place in his statement dated 31.01.2000 the appellant has admitted to have given the seized gold to Satendro Panda and go to Babulal Babu, where he would advise to whom the said gold is to be handed over, at other place in the said statement the appellant denies any knowledge about the said Babulal Babu, in support of their case, thus generating inherent ....
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....partment did not carry any further investigations at the end of BBC, therefore to now cry foul of the two invoice submitted by appellant is not open to them. (ii) That the appellant has admitted that "UBC", manual inscription referred supra were of their own accord to indicate the nexus with the said gold for their records. (iii) MMTC have admitted to be dealing in sale of "UBC" brand of foreign marked gold. (iv) MMTC as well as BBC both owned up to the sales as indicated in the said invoices. 19. We note with disdain that one amongst other grounds to implicate the appellant is the fact that the Babulal Babu too had been subjected to investigations concerning seizure of five foreign marked gold biscuits. However, we brush this aspect of the investigations as totally unrelated to the present matter and hence of no consequence to the issue at hand. Another ground in support of the departments' stand taken by the Ld. Authorized Representative Sri Faiz Ahmed is concerning the financial health of the appellants and to state that they did not have enough resources to make such large cash purchases. Other than a bland statement to this regard, we find that th....
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.... these computerized invoices that the department laid its hands on while conducting immediate follow up with BBC. 22. As to the repeated abuse of summons by the appellant and the department therefore arriving at the conclusion that it was so because the noticee was aware of the fact of investigations going in a direction against his interest, we feel that such assumption on the past of the department is hypothetical and pure conjecturing and no legal principle permits them to derive such an inference from the circumstances. Before arriving at such generalizations the onus would lie on the department to establish their contention. While we do not appreciate in the least, the abuse of summons by the appellants, we note that his stance in this regard has been twofold - (a) That he was repeatedly harassed by the department for which he had filed complaints and grievances with the authorities both within and outside the department and (b) that he was mortally scared and very much afraid to approach the authorities and that is why he had taken court's approval to be subjected to questioning in the presence of his advocates. Such conduct can necessarily not mean to indicate guilt or an....
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....n appeal or the investigation or the original order pointing them out by way of non application of mind or latches etc. As the arguments on the said pleas are shorn of merits of the issue we cease to take note thereof and hence refrain from any observation thereon. 25. We also take cognizance of the following case of laws for the propositions as under : (i) V.K. Jain & Sons Vs. Commr. of Customs - 2003 (160) E.L.T. 910 (T) "once the seller has admitted to have sold the gold in question to the Appellant, that fact by itself is sufficient to show the legal acquisition of the gold by him and the onus placed upon the Appellant under provisions of Section 123 is discharged to the requisite extent." (ii) S.K. Chains Vs. Commr. of Customs (Prev.) - 2001 (127) E.L.T. 415 (T) "the appellant had given the source of acquition of the foreign mark gold proving lawful acquisition, the burden casted upon the appellants has been discharged." In the said order it is also held that the admission of the manager of the appellants, to the effect that they were purchasing foreign marked gold biscuits from the open market without receipt, by itself is no in....
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....cised&Customa, Bhubaneswar-1 Commissionerate, Rajeshwarivihar, Central Revenue Building. BHUBANESWAR -751 004. y Sir, Sub: Seizure of 20 Nos. of Gold Biscuits of foreign origin from Shri K.Prasad Rao Subudhi of Berhampur - Verification of Bills- Reg Please refer to your fax C.No. VIII(10/11/CUP/BBSR-1/99 dated 25.8.99 on the above subject. As required by you an enquiry was conducted with M/s.Bherunath Bullion Corporation. Visakhapatnam about the Bills bearing Nos. 03101 dr. 16.8.99 and 03137 dt. 17.8.99. The duplicate copies of the bills bearing Mon. 03101 d. 16.0.99 03137 dt. 17.8.99 issued by M/s.Bherunath Bullion Corporation were available with them. Duplicate copies of these bills available with M/s.Bherunath Bullion Corporation have been obtained and enclosed for necessary action at your end. Photocopy of a letter dt. 25.8.99 written by Shri Mukesh Kumar Jain of M/s. Bherunath Bullion Corporation, Visakhapatnam, in this regard, which is self explanatory is enclosed for necessary action at your end. A photocopy of the invoice No. 306/MMTC GOLD/99-2000 dated 16.8.99 from M/s. MMTC, Port Area, Visakhapatnam, regard....