TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 341
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. 2. The facts of the case are that on the basis of intelligence developed by the officers of Directorate of Revenue Intelligence (DRI), Kolkata Zonal Unit that two persons namely Shri Chandra Shekhar Jha and Shri Ranjan Kumar Mishra, both aged about 25 years, were coming from Guwahati by Train No. 12518, Kolkata-Guwahati Garib Rath Express and likely to reach Kolkata on 28.02.2013 afternoon with considerable quantity of gold bars/biscuits in concealment which were brought into India by way of smuggling from Bangladesh through North-Eastern bordering states, the said persons were intercepted on 28.02.2013 in coach No. G-10 of Garib Rath (12518) Express, when the train was about to reach at Kolkata Railway Station while carrying yellow coloured metals believed to be gold in biscuits/bars form in their person. The said persons did not have any documents in their possession support of their legal importation or transportation of the same. 2.1. Summons were issued to both the apprehended persons directing them to appear before the Senior Intelligence Officer at Directorate of Revenue Intelligence, Kolkata office at 3rd Floor of Harrington Mansion, 8, Ho Chi Minh Sarani, Kolkata-7000....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... via Guwahati. He further stated that apart from Raja of Dimapur and Shri Dilip Agarwal of Guwahati (appellant no. 2), Shri Rajan Jha of M/s. Trackon Courier Services (hereinafter referred to as the "appellant no. 1"), amongst others, were involved in this business, but he had no knowledge about their addresses. 4. Based on the intelligence gathered and inputs received from the statements of both the Intercepted persons viz., Shri Chandra Sekhar Jha and Shri Ranjan Kumar Mishra, searches were conducted at the various places in Guwahati on 01.03.2013 by DRI Guwahati along with Officers of Guwahati Customs Division observing all formalities. 5. During the course of the above, a search was conducted inter alia at residential premises of Tony @ Ramesh Agarwal at Flat No. 7301, 3'd Floor, Block No. 7A, Sati Jaymati Road, Athgaon, Guwahati-01, but nothing incriminating in nature was recovered. Search was conducted on 01.03.2013 in presence of Smt. Kusum Agarwal wife of Shri Ramesh Kumar Agarwal and a lady officer in presence of two independent witnesses. Statement of Smt. Kusum Agarwal wife of Shri Ramesh Kumar Agarwal/appellant no. 2, was recorded u/s 108 of the Customs Act, 1962,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4.04.213. Again, vide letter dated 05.04.2013, Smt. Kusum Agarwal intimated this office that her husband had not returned after his treatment and the summon vide book no. 004, serial no. 170 was not delivered to her husband and as soon as he came, the same would be handed over to him and he would appear before this office. Shri Ramesh Kumar Agarwal, through his advocate Shri Rajendra Nath Barik, replied vide letter dated 30.04.2013 and sought more time for his appearance. It was also stated that his client had no manner of connection and/or relation with the said case and was not aware as to why he was being summoned by DRI Office. 9. In the meantime, one Shri Raju Arora (hereinafter referred to as the "appellant no. 3") S/o. Late Tilak Raj Arora, 9918, Ahata Thakurdas, Sarai Rohilla, Karolbagh, New Delhi - 110 005 claimed the goods under seizure vide his letter dated 15.03.2013 received in the office of DRI, Kolkata on 25.03.2013. The claim was received by post. Along with the said letter, he had enclosed a Rent Agreement dated 14.12.2012 between Shri N. K. Jain S/o Shri M. P. Jain, 1" & 2nd Floor, Shoppers Point, Fancy Bazar, Guwahati and Shri Raju Arora s/o Late Tilak Raj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....locality. He assured Shri Agarwal that both his conditions would be fulfilled and upon being satisfied after seeing the aforementioned Rent Agreement dated 15.12.2012, Shri Atal Bihari Agarwal finally sold the said gold to him vide Invoices baring Nos. 4, 7 and 8 dated 18.02.2013, 19.02.2013 and 20.02.2013 respectively. VAT was duly charged on purchase of the said gold, and as such, the said gold was bonfide purchased by him. (iv) Pursuant to receipt of the said gold, he requested Mr N. K. Jain to carry the said gold to Guwahati so that the process of converting the same to jewellery may be started. (v) Accordingly, Shri Jain agreed to carry the said gold and carried the same in his Check-inBaggage to Guwahati on 22.02.2013 by SpiceJet Flight No.SG-893. He also left from Delhi by train on 23.02.2013 and reached Guwahati on the morning of 25.02.2013. (vi) During his stay at Guwahati, he went to his showroom situated at 1" Floor, Shoppers Point, Fancy Bazar, Guwahati 781001 and oversaw the interior decoration work being conducted there. As he wanted to open the showroom within the month of March 2013, he requested them to expedite the work. He also met Mr. Ramesh Kumar Agarwal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that they were carrying gold of foreign origin brought into India from Bangladesh and had seized the said good. (x) As the said gold was not illegally acquired and / or smuggled gold, he immediately returned to Delhi and organized all the documents evidencing his lawful claim to the said gold which he had enclosed with his letter. (xi) He claimed the said gold under seizure and stated further that the same was bona fide acquired gold on which VAT had duly been charged, he had bought the said gold under proper credit invoices issued by M/s. Shree Shayam Traders. The said gold was meant for manufacture of jewellery for his showroom at Guwahati and was being sent to Kolkata after being melted at Guwahati so that the same may be exchanged for gold jewellery after paying making charges so that the same may be sold from his showroom at Guwahati. (xii) He also requested to release the said duty paid bona fide acquired gold to him. 10. In view of the claim filed by Shri Raju Arora (appellant no. 3), and to examine the role of Shri Rajan Jha of Guwahati (appellant no. 1), partner/owner of the franchisee viz. M/s. Arti Communications of M/s. Trackon Courier at Fancy Bazar, Guwahati, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m Guwahati and if anyone claimed that the consignment of gold is booked through his courier office from Guwahati, that was wrong and the documents as provided by him may be false/fabricated. (vii) C. No. 319514554 dt. 26.02.2013 was issued by his courier office. This CN was generated on 15.03.2013 at his Fancy Bazar office under pressure and life threat from Ramesh Agarwal and Raju Arora. This blank CN was issued to his branch by Trackon Couriers Pvt. Ltd. on 15.03.2013 and in any way; it can't be issued on 26.02.2013. In fact, this CN was issued on 15.03.2013 under threat and pressure of Raju Arora and Ramesh Agarwal. (viii) Ramesh Kumar alias Dilip alias Tony Agarwal owned a medical store named Vayur Medicos at Fancy Bazar, Guwahati. (ix) Trackon Couriers Pvt. Ltd. had also asked him about 17 CN's including the said CN vide their letter dated 03.04.2013 and he had told them that after proper verification, he would answer them about the CN's. 11. Meanwhile, Shri Raju Arora, Shri N. K. Jain and Shri Ramesh Kumar Agarwal filed three Writ Petitions (Nos. 13480W of 2013, 14187W of 2013, 14190W of 2013) separately under Article 226 of the Constitution of India in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mobile number was 8486024704 registered at his name and he was using it from last two years; that he knew Shri Raju Arora since last 20-22 years and had no business relations with Shri Raju Arora and Shri N. K. Jain. It was further stated that he met Shri Raju Arora at his medical shop on 25.02.2013 at 8.30 p.m. when his shop was about to close for that day; Shri Raju Arora (appellant no. 3) told him about his new business of Gold Jewellery Showroom at Guwahati and intimated that he had some gold to send to Kolkata for manufacturing of jewellery and asked him the way how it would be sent to Kolkata as he was unwilling to carry in person to Kolkata; that he (appellant no. 2) advised him to come next day; that Shri Raju Arora came to his shop on 26.02.2013 at around 12.30 pm and he took him to M/s. Trackon Courier which was nearby to his shop. 11.3. Statement of Shri Ramesh Kumar Agarwal was again recorded on 28.05.2013 wherein he inter alia stated that Shri Rajan Kumar Jha was the booking clerk who booked the consignment of Raju Arora consisting gold on 26.02.2013 at Trackon Courier, Fancy Bazar office; he had no other business relations with Chandra Shekhar Jha except sending med....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allegedly failed the test of authenticity in course of investigation and thus liable for rejection. 13. After completion of the investigation, a Show Cause Notice bearing DRI. F. No. 31/KOL/2013 dated 16.08.2013 was issued, inter alia, to the appellants herein, proposing confiscation of the seized 12.504 Kgs of gold in bar/biscuits form having estimated value of Rs. 3.75 Crores under Section 111(b) of Customs Act, 1962, along with imposition of penalties on the appellants herein under Section 112(b) / Section 114AA of the Act. The allegations made in the Show Cause Notice, inter alia, are as under: - (i) The subject seized gold bar/biscuits were smuggled into India through unauthorized land route of bordering state(s) in North East region of the country and after smuggling the same have been subjected to melting to erase the foreign markings and to re-shape it in the form of gold bars/biscuits. It is relevant to mention that out of 55 bars/biscuits, four gold bars weighing 1004 grams each were found to contain encryption of separate 8 digit numbers. (ii) The subject smuggled gold bars / biscuits were being carried by two apprehended persons who were otherwise engaged wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thout payment of appropriate duties in contravention of provisions of Customs Act 1962, are liable to confiscation under Section 111(b) of the Customs Act 1962. (ix) Shri Ramesh Kumar Agarwal @ Tony Agarwal @ Dilip Agarwal, being the mastermind of the smuggling racket organized planned smuggling and distribution, transportation of the dutiable items through unauthorized routes in connivance with Shri Rajan Kumar Jha, who indulged himself in smuggling activities in disguise of 'courier activities' rendering the goods so seized liable for confiscation under section 111 of Customs Act 1962 and thereby rendered themselves liable for penal action under section 112(b) of the Customs Act 1962. (x) Shri Raju Arora in connivance with his associate Shri Ramesh Kumar Agarwal, the mastermind behind the instant case of outright smuggling, indulged himself in procurement of forged/fabricated documents to claim the seized gold as legally procured and/or being member of the gold smuggling syndicate had misled the investigation by avoiding summon, delaying the proceedings, and fabricating facts of the case and misled the Hon'ble Calcutta High Court by providing wrong information and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 138B of the Act and the principles of natural justice. (iii) On 28.02.2013, two persons, namely, Mr. Chandra Shekar Jha and Mr. Ranjan Kumar Mishra, were intercepted in the Garib Rath Express near Kolkata, with 55 gold bars weighing 12.504 kg. The gold bore no foreign markings. Statements were recorded under Section 108 of the Customs Act from the above two and other individuals, who allegedly linked the consignment to one "Raja of Dimapur" and further to Mr. Dilip Agarwal and ultimately to the appellant. (iv) The appellant has consistently maintained that he lawfully purchased the gold through legitimate channels, supported by documents including a courier receipt dated 26.02.2013, purchase records from Shyam Traders, and financial transactions linked to HDFC Bank. A specific request for cross-examination of witnesses was made in para 12 of the Appellant's reply to the Show Cause Notice dated 16.08.2013, issued accusing the appellant of illegal importation and demanding confiscation of the gold and imposition of penalties. Despite this, the impugned order brushed aside the appellant's evidence, failed to examine the chain of custody, and relied on inadmissible call d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umes a smuggling ring and focuses on telephone records that were neither in the Show Cause Notice nor in the relied-upon documents. The adjudicator made no finding on the validity of the appellant's receipts and invoices, and falsely assumed the sale was false solely because Mr. Atal Agarwal (his supplier) did not appear in person. This was unfair: a missing witness or retrospective dealer registration cancellation (noted in SCN) cannot, by itself, discard detailed documentary chains of transactions. The Appellant's supporting documents were entitled to full, objective consideration, not the wholesale rejection they received. It is a matter of record that nobody other than Mr Atal Bihari Agarwal was summoned, who claimed ownership of the gold. Mr Agrawal was struggling with comorbidities, and he succumbed to such disease. It is submitted that Mr. Agrawal left for the heavenly abode on 01.01.2016. The summoning of Mr. Agarwal and the date of his death are merely months apart. (viii) Denial of Cross-Examination: Most critically, the appellant expressly asked to cross-examine all persons whose statements were relied on, including the two couriers and the Guwahati courier par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r jurisprudence to suspect foreign origin. Moreover, no evidence was produced of cross-border movement, no country of origin was identified, and no smuggling route, vehicle, person, or money trail was discovered. (xi) In Neeraj Agarwal v. CC (Preventive), Kolkata, (2024) 18 Centax 539 (Tri-Cal), the Tribunal held that mere purity or foreign markings on gold do not by themselves establish foreign origin. In the present case, with no foreign markings and no corroborative evidence, the Department's suspicion lacks the statutory foundation of "reasonable belief." (xii) Similarly, in Madhukar Sonaba Bhagat v. CC (Preventive), WB (Final Order No. 75782/2019), the Tribunal ruled that confiscation cannot be sustained in the absence of reasonable belief and evidence of smuggling. The appellant's gold was found lawfully procured, and his explanation was not rebutted by evidence. The same principle applies here. (xiii) Appellant Has Discharged the Burden of Proof: Even assuming the Department had a prima facie suspicion, the Appellant has discharged the burden under Section 123 by producing: * Valid invoices from Shayam Traders; * Courier dispatch receipts from M/s. Tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and involvement were never established. (xviii) None of the said evidence meets the legal threshold for admissibility. Statements under Section 108 cannot be treated as substantive evidence unless tested through crossexamination. As per Elora Tobacco Co. Ltd. v. UOI, 2024 SCC Online MP 3508, reliance on such statements without cross-examination infringes the right to a fair hearing. (xix) In Roshan Sharma v. Asst. Commissioner, State Tax, MAT 854/2024 (Cal HC), the Court remanded the matter for fresh adjudication when cross-examination was denied. (xx) Absence of Money Trail or Import Link: Critically, the investigation failed to establish any: * Fund transfers from India to any foreign seller; * Connection to any international smuggling syndicate; * Records showing entry from Bangladesh or other ports; * Letter rogatory or request for mutual legal assistance to verify the foreign origin. (xxi) The so-called smuggler "Raja" was never located or examined, and no foreign entity was identified. This lack of probative evidence shows that the case is founded on conjectures, not facts. 16.1. In view of the above submissions, the Ld. Counsel for appellant no. 3, nam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ellant had no manner of connection and/or relation with the said lawfully purchased gold. The said statements of Shri Raju Arora fully corroborate the statements of the appellant in all material particulars and there is neither any discrepancy nor inconsistency regarding the involvement of the appellant in the said statements. In the premises, there was no warrant and/or justification in imposing personal penalty on the appellant as has been done in the instant case and consequently the order impugned herein is liable to be set aside in so far as it imposes personal penalty on the appellant. (vi) For that the learned Adjudicator failed to consider that the only material being relied on by the Department against the appellant are the statements obtained from Shri Chandra Sekhar Jha, Shri Ranjan Kumar Mishra and Shri Rajan Jha. In this context it is pertinent to state that the said statements of Sri Chandra Sekhar Jha, Sri Ranjan Kumar Mishra and Sri Rajan Jha are statements of co-accused persons who are facing joint adjudication in pursuance of a common show cause notice. Law is well settled that the statements of co-accused persons are not substantive evidence and cannot be relie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance on the same vitiates the order impugned herein in so far as it relates to the appellant. In the premises, the order impugned herein is liable to be set aside and/or quashed in so far as it relates to imposition of personal penalty on the appellant. (ix) For that the learned Adjudicator manifestly erred while coming to the conclusion in paragraph 77 of the order impugned herein that he is not convinced regarding the innocence of the appellant and his ignorance about seizure of subject gold on 28.02.2013 as there are two versions of cause of absence of the appellant from summons issued by DRI. It is submitted that the learned Adjudicator has stated at paragraph 77 of the order impugned herein that though it has been stated in the reply to the show-cause notice filed by the appellant's learned Advocate that he went to Delhi for treatment, his wife and his salesman have stated in their statements that he in fact left for Kolkata on 01.03.2013. It has been further stated by the learned Adjudicator in the said paragraph that this difference in versions of the cause of absence of the appellant from appearing before the DRI was occasioned due to the reason that he had not been a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the aforesaid persons were admittedly working for Tracon Courier. It is thus crystal clear that irrespective of the statements given by them, the correctness of the case of the appellant and Shri Raju Arora is corroborated by the fact that 12.5 kgs. (55 pieces) of gold was admittedly handed over by Shri Raju Arora to Tracon Courier Service against proper receipt issued by them. The same gold was seized by the Officers of DRI from the representatives of Tracon Courier. This aspect of the case clearly goes to show that the gold weighing 12.5 kgs. (55 pcs.) was in fact given by Shri Raju Arora to the said courier service for transportation to Kolkata. In this context, it is further pertinent to state that Sri Rajan Jha in his statement recorded on 08.042013 had stated that the said consignment note no. 319514554 dated 26.02.2013 was in fact issued by him, however, he has introduced a new story in his subsequent statement that the consignment note was issued on 15.03.2013 at his Fancy Bazar Office under pressure and life threat from the appellant and Shri Raju Arora. Significantly enough, no police complaint or even a complaint to the Officers of DRI had been made by Sri Rajan Jha, in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce. Thus, a Learned Judge cannot start with the confession of a co-accused for the purpose of adjudging another accused guilty. Learned Judge has to first marshal the independent material and/or evidence and if he finds substantial material against the said accused, he can then look into the statement of a co-accused for the purpose of lending assurance to the verdict of guilt which he is about to pronounce on the basis of such independent materials and/or evidence. A learned Judge cannot start with confession of co-accused persons and adjudge another accused guilty in a joint proceeding on the basis of common show cause notice. In the instant case, save and except the statement of a co-accused persons, there are no independent material and/or evidence on the basis of which it can be concluded that firstly, the appellant had smuggled the gold into India from Bangladesh and, secondly, knowing the said gold to be of smuggled nature, entrusted it to Shri Chandra Sekhar Jha and others for transportation to Kolkata. On the other hand, there are overwhelming evidence in the records of the case which categorically show that the gold in question was acquired lawfully by Shri Raju Arora at....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evidence against the appellant except retracted confessional statements of co-accused persons, the learned adjudicator ought to have relied on the overwhelming evidence in favour of the appellant's innocence and the gold under seizure ought to have been released to him. Further, no personal penalty was liable to be imposed on the appellant. In the circumstances aforesaid, the order impugned herein smacks of patent arbitrariness and betrays complete non-application of mind on the part of the learned adjudicating authority rendering the order impugned herein bad in law and liable to be set aside insofar as it relates to confiscation of the bona fide acquired gold of the appellant and imposition of personal penalty on him. (xiv) For that the learned adjudicator completely overlooked and/or ignored the fact that the gold in question could not be of foreign origin as has been alleged in the show cause notice for two reasons, (i) the said gold had been claimed by Shri Raju Arora as having been purchased at Delhi along with valid documents and stated to have been brought from Delhi to Guwahati by Shri Narendra Kumar Jain in his statement and, (ii) the said gold does not bear any for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ifestly erred by imposing an exorbitant "exemplary" penalty of Rs. 3.75 crores on the appellant under Section 112(b) of the Customs Act, 1962. It is submitted that as the other four subsections do not relate to the appellant, inasmuch as, sub-section (i) relates to prohibited goods and gold is not a prohibited item, sub-section (iii) relates to baggage declaration under Section 77 of the Customs Act, 1962, sub-sections (iv) and (v) deal with joint offences covered under sub-sections (i), (ii) and (iii). In the premises, the relevant provision for imposition of penalty on the appellant, if at all, was sub-section (ii) of Section 112(b) ibid which provides for imposition of penalty not exceeding the duty south to be evaded or five thousand rupees. It is submitted that import of gold is subjected to 10% duty and since the value of the gold is admittedly Rs. 3.75 crores, the maximum penalty that could have legally been imposed on the appellant is Rs. 37.50 Lakhs only (i.e., 10% of Rs. 3.75 crores). Unfortunately, the learned adjudicator seems to have been misguided by some notion which is not borne out from the Customs Act, 1962 and he has acted in an extra-judicial manner and ultra vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eeping, concealing, selling or purchasing, or in any other manner dealing with the said gold. In the premises, as the ingredients of Section 112(b) of the Customs Act, 1962 are conspicuous by their absence, no penalty ought to have been imposed on the appellant under the said provision. (xx) For that the so-called statement of Shri Rajan Kumar Jha, which is being relied upon by the Department to prove its case, has already been retracted by him. At the very least, statements recorded from such a person forms a very weak type of evidence and no reliance ought to be placed on the same on this ground alone inasmuch as it does not inspire any confidence. 16.3. Further, the Ld. Counsel appearing on behalf of Shri Rajan Kumar Jha (the appellant no. 1 herein) has made the following submissions: - (i) The said appellant has been implicated on the basis of statement of co-noticee. (ii) The appellant was not found in possession of the goods. (iii) Nobody at any stage of the investigation had ever stated that the appellant had any knowledge about the smuggled character of the goods. (iv) The adverse conclusion against the appellant has been drawn only on the basis of the allegation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nes, implying that they had given their voluntary, true and correct statement each and every time without being subjected to any threat or duress or coercion. (v) That Shri Chandra Sekhar Jha in his statement dated 28.02.2013 stated that he knew that gold reaches India through an unauthorized route from Bangladesh to Dimapur and from there, a person named Raja of Dimapur sent it to Dilip Agarwal; that it was also stated that that Rajan and his many associates are engaged in this wrong business of gold in the guise of franchisee of Trackon Courier, Fancy Bazar, Guwahati where he and Ranjan were employed. (vi) That Shri Ranjan Kumar Mishra in his statement dated 28.02.2013 stated that Shri Ramesh Kumar Agarwal @ Shri Dilip Agarwal smuggled these goods from Bangladesh through Dimapur and in this work a person of Dimapur named Raja helped him. (vii) As stated by Shri Chandra Sekhar Jha, this gold was brought illegally from abroad and hence his and /or other courier company never provides their challan for this. (viii) Hence, there remains no ambiguity with regard to the seizure of gold from the possession of the aforesaid two persons, without any covering documents. (ix....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bossed on the 4 big gold bars under seizure and most importantly, the purity mentioned in each of the VAT Invoices was 99.5% and not 99.93% to 99.96%. Hence, his claim on the seized gold does not have legs to stand on these aforesaid grounds. Further findings during / post investigation in respect of the invoices are elaborated in the latter part of this submission. (xv) The DRI had already initiated follow- up action on 01.03.2013 immediately after the seizure on 28.02.2013 and searches were conducted in three offices of M/s Trackon Courier in Guwahati on 01.03.2013 itself and statement of the Area Manager Mr. Manoj Kumar Biswas was recorded, wherein he had stated that gold and silver are forbidden items for transshipment by his courier company and no consignment of gold bars was handed over to Shekhar Jha from Area office for delivery to Kolkata and Mr. Jha was not allowed to take booking of consignments containing gold for delivery through Trackon Courier because as per policy, gold is a prohibited item for shipment through Trackon Courier. (xvi) From the statement of Shri Subhendu Sekhar Jana, A.G.M. of Trackon Couriers Pvt. Ltd., dated 02.04.2013, it is revealed that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd that he took him to Trackon Courier Fancy Bazar office where Rajan Kumar Jha was the booking clerk who booked the consignment consisting of gold of Raju Arora on 26.02.2013; that he knew Chandra Shekhar Jha; that he also stated that Rajan Jha had given the receipt to Raju Arora; that the goods were booked in his presence by Raju Arora; that he has no idea about the ownership of the gold and he had not seen the gold; (xx) That Shri N.K. Jain in his statement dated 12.06.2013 has inter alia stated that that three sale invoices in the name of Shri Raju Arora, issued by M/s SHAYAM TRADERS, weight appx. 12 kgs. were given to him along with goods for carrying; that he did not know any person by the name of Rajan Jha and did not have any idea about the said letter dated 11.04.2013. (xxi) Shri Chandra Sekhar Jha, in his statement dated 09.07.2013 stated that he works for Shri Rajan Jha as one of his employees at his courier company at Fancy Bazar, Guwahati; The gold intercepted from his possession on 28.02.2013 was not booked through his courier branch and no CN of Trackon Courier was provided to them in this regard on 27.02.2013 when they moved for Kolkata. It was also stated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....art-I, Near Pelinji Kotla Mubarakpur, New Delhi-110003", Shri Atal Bihari Agarwal, Proprietor of "Shree Shayam Traders" (as appeared from the said invoices) neither appeared under repeated summons nor produced the documents requisitioned by DRI for evidence viz. Stock Register for (F.Y.2012-13, Sale Bills, Sales Tax/VAT Returns etc. for F.Y.2012-13, Trade Licence, TIN Regn. Certificate, copy of Agreement for credit sales, if any. (xxv) Against a Writ Petition filed in the Hon'ble Calcutta High Court, Shri A. B. Agarwal was allowed to accompany a lawyer of his choice to appear under summon before DRI officer. In spite of that even after servicing of intimation through his advocates (as last few summons returned undelivered) Shri A. B. Agarwal failed to produce evidence in support of claim filed by Shri Raju Arora regarding the authenticity of purchase of gold from him. (xxvi) TIN (Tax identification number) of "Shree Shayam Traders, 2034/B, Shop No. 1, South Extn. Part-I, Near Pelinji Kotla Mubarakpur, New Delhi-110003" was found to be mentioned as 07330456433 in the invoices issued to Shri Raju Arora. From TINXYS data base, TIN No. 07330456433 was verified....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al (spelt as 'Atal Behari Agarwal'), said to be Proprietor of 'M/s. Shree Shayam Traders', as at page 8 of the writ petition, it was stated that the proprietorship firm was duly registered with the VAT authorities. The petitioner was an lncome Tax assessee having PAN bearing No. AGWPA5655K and regularly pays applicable income tax to the authorities concerned. On study of the PAN database, it revealed that the declared PAN AGWPA5555K did not pertain to Shri Atal Bihari Agarwal but belonged to Shri Raju Arora, i.e. the claimant of the seized goods. This clearly indicates that Shri Atal Bihari Agarwal also misled the Hon'ble High Court in connivance with Shri Raju Arora in the matter of declaring his business profile, and thereby rendered his activities doubtful so far as issuance of VAT invoices is concerned. (xxx) The VAT invoices nos. 4, 7 and 8 submitted by Raju Arora to claim the gold did not mention the number of pieces, individual weights and embossed serial numbers as contained in the 4 big gold bars under seizure and most importantly, the purity mentioned in each of the VAT Invoices issued by A.B. Agarwal, as submitted by Raju Arora was 99.50 and n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld. adjudicating authority also found it not believable that showroom space of much lesser consideration has been covered under an 'Agreement' whereas credit sale of gold to such a huge tune between Raju Arora and Atal Behari Agarwal is not properly recorded under an agreement, is without proper documentation, and on credit. The claim of purported transportation of gold first from Delhi to Guwahati without any insurance and again purported transportation through Trackon Couriers Pvt Ltd. (against their laid down policy of transhipment of gold) and that too without insurance from Guwahati to Kolkata does not hold ground. (xxxvi) It is also evident that none of the invoices / bills/ documents supplied by Shri Raju Arora, either on earlier occasion with his letter dated 25.03.2013, or annexed at a later stage with reply to the Show Cause Notice is similar in number, weight and purity to the gold under seizure. All the documents/bills/VAT invoices/Bank documents submitted by Raju Arora show purity of gold claimed by him as 99.50%, which differs from the actual purity of the gold under seizure, being 99.93 to 99.96%. Further, in the VAT invoices, the aggregate weight is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vs. Principal Commissioner and Addl. Secy. to GOI & Ors. [WP(C) 8902/2021,9561/2021, WP(C) 13131/2022,CM APPL. 11400/2023, WP(C) 531/2022, CM APPL 1519/2022 and W.P.(C) 8083/2023,CM APPL 31146/2023 - HIGH COURT OF DELHI] * Commr. of Customs (Prev.), NCH, New Delhi Versus Suresh Bhonsle [2024 (388) E.L.T. 90 -CESTAT PRINCIPAL BENCH, NEW DELHI- C.A. Nos. C/50934 with 51257 & 51737/2018 (DB)] * Shankar Lal Goyal Vs. Commissioner of Customs, New Delhi. [2023 (12) TMI 1156 - CESTAT NEW DELHI -- CA- 50070 of 2020, F.O. No. 51685/2023] * Deepak Handa & Ravi Handa vs. Principal Commissioner of Customs (Prev.), New Delhi [C.A. No. 52922 of 2019 & 52923 of 2019, F.O. No. 51520-21 /2021- CESTAT, PRINCIPAL BENCH, NEW DELHI.] * Bala Nagu Naga Raju Versus Commissioner of Central Tax, Guntur GST [C.A.30400 of 2022 (S.M.) /F.O. No. 30092/2023] * State of Gujarat Versus Mohanlal Jitamalji Porwal & Another [1987 (29) E.L.T. 483 (S.C.)] 17.1. In view of these submissions, the Ld. Authorized Representative of the Revenue prayed that the Order of the adjudicating authority be upheld in its entirety. 18. Heard the parties and considered their submissions. 19. We find that in this case,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i Raju Arora, who is the appellant no. 3 herein, vide his letter dated 15.03.2013, received in the Office of the DRI on 25.03.2013, claimed to be the owner of the said gold which he claims to have purchased by from M/s. Shri Shayam Traders, Mubarakpur, New Delhi through invoices bearing Nos. 4, 7 and 8 dated 18.02.2013, 19.02.2013 and 20.02.2013 respectively, on which VAT has been paid. For better appreciation of these facts, the said invoices are extracted hereinbelow: - 20. From the above, we find that the purity of the gold in the said invoices is shown as "99.5" per cent. The numbers / pieces of gold is also not mentioned in the said invoices. Further, it is a fact on record that the claim of the appellant no. 3 is that he had sent the said gold from Guwahati to Kolkata through M/s. Trackon Courier Pvt. vide receipt bearing No. 319514554 on which Rs.14,000/- has apparently been paid as courier charges. It is also the claim of the appellant no. 3 that they had booked the said consignment on 26.02.2013 and the said gold was to be delivered to them on 01.03.2013. 20.1. However, when the said consignment of gold had not reached there and it was intimated that the said consignment....