TaxTMI 
TaxTMI 
2025 (6) TMI 868
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....cers of Divisional Preventive Unit, Barasat Customs Division went to 37/1, Ground Floor, Shiv Tala Street, Kolkata-700007 at around 13.30 Hrs. on 22.08.2013 and waited there. At about 14.45 Hrs. two persons reached there and being informed by the informer the Officers apprehended them. On being questioned, one of them identified himself as Raj Kumar Ghosh, aged about 20 Yrs, S/o Shri Sital Ghosh, Vill: Goura, P.O: Goura, P.S.: Daspur, District: Midnapore (West), West Bengal and other as Pintu Midya, aged about 36 years, S/o Shri Renu Midya, Vill: Dalapatipur, P.O.. Kharar, P.S.: Ghatal. District: Midnapore (West), West Bengal. The Officers then informed Shri Raj Kumar Ghosh & Shri Pintu Midya that they are Customs Officers & they have power to search them in person and requested their persons to be searched as per provisions of the Section 101 of the Customs Act, 1962 before beginning the search proceedings but both the persons politely declined the offer. The Officers then asked Shri Raj Kumar Ghosh & Shri Pintu Midya whether they were carrying any contraband item to which Shri Raj Kumar Ghosh & Shri Pintu Midya remained quiet. Then the Officers called two local independent witnes....
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.... a jewellery worker who makes ormaments as per the instruction received from his employer. His salary is Rs. 1500/- per month. The foreign origin gold bar recovered from his possession was given to him by his employer i.e. Mr. Biswanath Dewan to hand it over to a person at 37/1 Shibtala Street on 22/08/13 when he was apprehended by the Customs Officers of DPU, BCD. And he was not having any valid document in his possession to substantiate the legitimate possession of the gold bar recovered from him. The gold bar recovered from him was of foreign origin (Switzerland inscribed on it) and was about of approx. Rs. 3070000/- [Rupees Thirty lakh and seventy thousand) (iv) Mr. Pintu Midya in his voluntary statement recorded on 22/08/13 stated that he works as gold chain maker at the work shop of Mr. Biswanath Dewan from a very long time. He received the gold bar of foreign origin from Mr. Biswanath Dewan to deliver it to a person at 37/1 Shibtala Street, Kolkata-700007. He gets a salary of Rs. 5000/- per month from Mr. Dewan and was to get some extra money for this delivery. The gold bar recovered from him had a bird marking and Emirates written on it. (v) Then the goods....
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....swas, Supdt. DPU, BCD visited 26, Nalini Seth Road, Kolkata-07 on 24/08/2013 and conducted search at the workshop of Mr. Dewan but no documents related to the seized gold bars [Serial no-L20141and D138010] were found. (ix) Then both the accused namely Mr. Raj Kumar Ghosh and Mr. Pintu Midya were arrested under section 104 of the Customs Act, 1962 duly approved by the CC(P), West Bengal to unearth the racket and to nab the fountain head of the racket on 23.08.2013 at 11:30 hrs and produced both of the accused before the Chief Metropolitan Magistrate, Kolkata. (x) Therefore a summon u/s 108 of the Customs Act, 1962 was issued to Mr. Biswanath Dewan on 24/08/13 and his voluntary statement was recorded in which he stated that he makes gold and silver jewellery at 26, Nalini Seth Road, Kolkata-07 for the last 6-7 years. Raj Kumar Ghosh and Pintu Midya are his employees. Raj Kumar Ghosh and Pintu Midya work as gold and silver jewellery makers and also make delivery of gold and silver, and their wages are Rs. 1500/-and Rs. 5000/- per month respectively and both of them reside at his shop only. He was not present at his shop on 22/08/13 when his employees were apprehended....
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....d any paper or not. In West Medinipur his father has agricultural land and he has a rented shop at Burrabazzar. There is no land in his name and no other source of income. He makes jewellery but no bill is issued and he takes making charge in cash. In 2013-14 till date i.e. 29/11/2013 he has not sold or purchased gold bars. (xiv) An enquiry was made to ascertain the truth of Mr. Rajesh Pawar's statement that the gold bars (Serial no- L20141and D138010] sold to Mr. Dewan were procured from Edelweiss Commodities and Services Limited vide letter C.No. VIII(10)/IMP/CL/GOLD/CUS/DPU /BCD/2013- 14/955 dated 05/12/2013. Edelweiss Commodities and Services Limited replied that "....We would like to inform that these particular Bars are not imported and sold by us" through their letter dated 12/12/2013. (xv) It is also to be mentioned that Mr. Raj Kumar Ghosh and Mr. Pintu Midya were both Intimated several time vide letter dated: 09/09/2013, 30/09/20013, 17/12/2013, 23/12/2013 and 08/01/2014 to appear before the Superintendent of Customs and assure their attendance before the chemical examiner for drawal of sample from the seized goods for assay but they failed to appear....
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....h Trading Co. are liable for penalty under section 114AA of the Customs Act 1962 for submitting false and incorrect documents. (xxi) Notice under Section 124 of the Customs Act, 1962 was issued to the noticees vide C. No.VIII(10)20/IMP/CL/GOLD/CUS/DPU/BCD/20 13-14 dated 31.01.2014 to Show Cause in writing before the Commissioner of Customs (Prev.) West Bengal, Kolkata, Customs House, 15/1 Strand Road, Kolkata-700001 within 30 days (Thirty Days) from the date of receipt of the notice as to why:- (i) The goods mentioned in the schedule should not be confiscated under Section 111(b) and 111(d) of the Customs Act, 1962. (ii) Penalty should not be imposed upon the noticees Sl. No. Ito 4 under Section 112 of the Customs Act, 1962 (iii) Penalty should not be imposed upon the noticees Sl. No. 3 and 4 under Section 114AA of the Customs Act for submitting false and incorrect documents. 3. The appellants contested the Show Cause Notice on the ground that the appellant no. 1 viz, Biswanath Diwan,is the owner of the gold in question and he had procured the said gold from M/s. Anish Trading Company owned by the appellant no. 4, namely, Shri Rajesh Pawar and....
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....ns accompanying him from causing damage to documents, avoid inference with them and their contents, and (e) to safeguard against interference by strangers. As no Panchnama was prepared in this case, therefore, he submits that the whole case has been made out on the basis of assumptions and presumptions. 5.3. It is his further submission that the appellant no. 1 has submitted VAT invoices, VAT Returns, Stock Register, etc., to substantiate the procurement of the seized gold by licit means, which has not been disputed by the Revenue. 5.4. He also relied on the decision in the case of S.K. Chains v. Commissioner of Customs (Preventive) [2001 (127) E.L.T. 415 (Tri. - Mum.)]. 5.5. Thus, the Ld. Counsel for the appellants submitted that the gold in question is not liable to be confiscated and consequently, the gold be released to the appellant no. 1, who is the owner of the gold in question. It is therefore submitted that no penalty is imposable on the appellants as the said gold has been procured through licit means. 6. On the other hand, the Ld. Authorized Representative of the Revenue supported the impugned order and contended that at the time of interception, ....
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...., particularly when contents of seized documents and entire proceedings are challenged. 9.1. In the present case, it is a fact that no Panchanama has been drawn. In these circumstances, we hold that the proceedings against the appellants are not sustainable. 10. Further, with regard to the penalty imposed on the appellant no. 4, we find that a similar issue has been examined by the Tribunal in the case of S.K. Chains (supra) wherein it was observed as under: - "In this background we would examine the discharge of the burden placed upon the Appellants. Shri Kothari in his statement claimed that foreign marked gold under seizure was duly recorded is the firm's stock register. He named two sources of acquisition. One was a gold dealer's firm by the name, Sanghavi Dandrup Devji & Co., and the other was one passenger by the name of Dilip Bhulchandani. The representative of the dealers deposed that 33 foreign marked gold pieces were sold by them under four invoices to the Appellants. Although the Show Cause Notice says no documents were produced by M/s. Sanghavi D. Devji & Co., to show the legal import of this gold sold to the present Appellants, curiously they hav....