TaxTMI 
TaxTMI 
2025 (8) TMI 341
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....r disposal together by way of a common order. 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 Harringt....
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....ed after melting and prepared for despatch to Kolkata 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/appell....
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....ue dates. Summon dated 01.04.2013 was also served to him through DRI Guwahati duly received by Meghna Agarwal D/o Ramesh Agarwal on 04.04.213. 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 be....
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....m on credit subject to the condition that henceforth he shall only buy gold from him and also that the showroom he would open in Guwahati had to be in a posh 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 dec....
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.... take steps to find out the position of the case. Upon conducting enquiries, his learned advocate informed him on 10.03.2013 that two persons had been arrested by the officers of DRI on the allegation 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 ....
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....e at Guwahati and each and every franchise was bound to obey these conditions. If any franchise of Trackon Courier Pvt. Limited booked the consignment of Gold/Silver that would be illegal. (vi) No consignment of gold was booked ever by his courier firm from 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 ....
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....ed on 24.05.2013 under Section 108 of the Customs Act, 1962, observing Hon'ble Court's order, wherein he inter alia stated that he dealt in medicine as retailer. It was also stated that he had a retail medicine shop namely "Vayur Medicose" at S.R.B.C. Road, Fancy Bazar, Guwahati; his 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 a....
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.... and/or being member of the gold smuggling syndicate and had misled the investigation by fabricating the facts of the case. Regarding the claim made by Shri Raju Arora/appellant no. 3, the Revenue was of the view that the same is an afterthought and based on forged/fabricated documents which have 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....
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....o with Shri Rajan Kumar Jha, who accompanied him to Kolkata on 01.03.2013 and had made / received several calls through his mobile numbers (viii) The said seized 12.504 Kgs of gold having estimated value of Rs. 3.75 Crores (approx) and improperly imported by land though unauthorized route and without observing the import formalities and without 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 ....
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....courier receipts, and banking documentation. (ii) It is submitted that the confiscation order is unsustainable in law and fact, as the Department has failed to prove smuggling or the contraband character of the gold. The order is further vitiated by the denial of the appellant's statutory right to cross-examine witnesses and by reliance on inadmissible and uncorroborated statements in violation of Section 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 link....
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....nts and Explanation Disregarded: The appellant presented extensive evidence showing legitimate acquisition and sale of the gold; consignment receipts (dated 26.02.2013), bank statements, purchase invoices, and transfer documents from HDFC Bank to his Kolkata supplier. These fully accounted for the bars. This evidence was brushed aside; the Order-in-Original merely repeats the Show Cause allegations without analyzing the appellant's records. It assumes 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 owners....
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.... satisfying Section 138B, the adjudicator not only violated natural justice but also flouted the statutory safeguard that evidence must be tested by the opposite party. This vitiates the entire proceeding. (x) Failure to Establish a Reasonable Belief of Smuggling: The cornerstone of the Department's case is the assumption that the seized gold was smuggled from Bangladesh. However, the gold bore no foreign markings, a key indicator under 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 confiscati....
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....is essential in quasi-judicial proceedings. (xvi) In this case, no exceptional reason was recorded for denying the Appellant this right, making the order procedurally unsound and liable to be set aside. (xvii) Inadmissible and Unreliable Evidence Relied Upon by the Department: In this case, the Department has sought to rely on: - • Uncorroborated statements made under Section 108 ibid., some of which were retracted; • Call data records (CDRs) do not form part of the Relied Upon Documents (RUDs); • Allegations against a person named "Raja," whose identity 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. (....
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....y on the appellant. (v) For that the learned Adjudicator manifestly erred in imposing personal penalty on the appellant, inasmuch as, Shri Raju Arora in his statements dated 23.05.2013 and 24.05.2013 recorded under Section 108 of the Customs Act, 1962 had claimed the said gold and had stated that the said gold was lawfully purchased by him from Shri Atal Bihari Aggarwal. It is submitted that in the statements recorded from Shri Raju Arora, he had explained the details and the manner in which he came in possession of the said gold and the said statements clearly show that the appellant had merely recommended the courier agency for sending the said gold from Guwahati to Kolkata and besides the aforesaid, the appellant 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 a....
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....Customs, Cochin reported in 2014 (309) ELT 671 (KER) manifestly erred by using the said decision to justify reliance on statements of co-accused persons. It is submitted that the said decision clearly states that confessional statement of co-accused can be treated as evidence provided sufficient materials are available to corroborate such evidence. In the instant case, however, there is not even an iota of evidence besides the said statements of co-accused persons that even remotely implicates the appellant, and as such, even going by the observations made in K. P. Abdul Majeed (supra), which is in the nature of obiter dicta, and hence is not legally binding as a precedent the said statements do not pass the test contained therein and reliance 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 a....
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....de towards the appellant which had rendered him incapable of adjudicating the instant case in a fair, justiciable and bona fide manner. As prejudice is evident from perusal of the said portions of the impugned order, the entire order in so far as it relates to the appellant cannot be said to have been passed judiciously in a equitable, fair and reasonable manner and consequently the same is liable to be set aside. (xi) For that the learned Adjudicator failed to consider that the only material being relied on by the Department in the instant case are the statements obtained from Shri Chandra Sekhar Jha, Ranjan Kumar Mishra and Sri Rajan Jha. It is submitted that the first two persons were the persons who were apprehended with the gold in question. All 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 f....
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....proved from the fact that even though thorough and protracted search was conducted at his residence, nothing incriminating of whatsoever nature was found there. In the premises, save and except the statements of the said three persons, there were no materials against the appellant warranting imposition of penalty on him under Section 112 (b) of the Customs Act, 1962. (xii) For that law is well settled that statements of co-accused persons are not substantive evidence and cannot be relied upon for the purpose of establishing the guilt of another accused. The statement of a co-accused can at best be used for the purpose of lending assurance to the verdict of guilt which the judicial mind is about to pronounce upon appraisal of independent material and/or evidence. 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 basi....
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....ourse of such searches nothing incriminating of whatsoever nature was found and/or seized by the officers concerned. Statements had been recorded from the wife of the appellant wherein she had categorically stated that the appellant is engaged only in the business of medicines and stone crushing. The statement of the appellant recorded under Section 108 of the Customs Act, 1962 also contains his categorical denial regarding having any manner of connection and/or relation with the gold under seizure save and except introducing Tracon Courier people to Sri Raju Arora. These facts have been corroborated by Sri Raju Arora in his statement. The statement of the appellant gets further credence from the statement of Shri Narendra Kumar Jain. In the premises, in the absence of any 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 p....
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....hat the department is trying to make a mountain out of a mole hill by harping on the so-called statement of Shri Rajen Kumar Jha who initially made a statement as per the dictates of the officers concerned only to retract the same later and once again fall victim to the guiles of the department and parrot statements as per their desire. 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. In the premises, reliance on the said statements by the learned adjudicator for imposing personal penalty on the appellant has occasioned grave miscarriage of justice warranting interference by the Tribunal. (xvii) For that the learned adjudicator has manifestly 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 t....
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....o penalty can be imposed. In the instant case, there is no evidence of whatsoever nature to show that the gold under seizure is any manner connected and/or related with the appellant. (xix) The only material brought on record by the Department is the statement of Shri Chandra Sekhar Jha, Shri Ranjan Kumar Mishra and Shri Rajan Jha which is in the nature of confession of a co-accused and is further exculpatory in nature and hence necessarily inadmissible as per Section 30 of the Evidence Act, 1972. Furthermore, there is not a shred of evidence in the entire record of the case to show that the appellant, having known the aforesaid persons, with knowledge that they deal in illegally imported and/or smuggled gold, agreed to receive the said gold and was involved in carrying, removing, depositing, harbouring, keeping, 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....
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....ce is placed of the judgment of the Hon'ble Supreme Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal and Another [1987 (29) E.L.T.483 S.C.]. In this case the seized gold chain was coated with mercury and purity of gold was 99.6%; without foreign markings). (iii) Reliance is also placed on the entire judgment of the Hon'ble Supreme Court in the case of Om Prakash Khatri vs Commissioner [2019 (368) E.L.T. A155 (S.C.)] on the issue of burden of proof u/s 123 of the Customs Act, 1962 including the issue that the seizure being a town seizure and not effected in an international border or near an airport / seaport does not make the seizure illegal. In this case the purity of the seized gold was 99.8%; without foreign markings. (iv) The four statements given by each carrier of the seized gold were never retracted and they have reiterated their previous statements in their subsequent ones, 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 t....
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.... Trackon couriers neither handed over any gold nor any document in respect of the gold seized from the said two persons. The gold carried by S/Shri Chandra Shekhar Jha and Ranjan Kumar Mishra was not handed over to them by Trackon Courier. They carried the gold on their own by concealment, without any document, at the instructions of Ramesh Kumar Agarwal @Dilip Agarwal@ Toni Agarwal and assisted at Guwahati by Rajan Kumar, only for the sake of monetary gain. (xiii) The gold under seizure consists of 51 (fifty one) small pieces of 166/168 gms. each and 04 (four) big pcs. weighing 1004 gms. each, having embossed serial numbers 10010075, 10010076, 10010077 and 10010078 on the 04 big pieces. The Sample Testing Report dated 07.03.2013 of the Chemical Examiner, Kolkata showed purity of the seized gold in the range of 99.93% to 99.96%. (xiv) 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 serial numbers as embossed 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 th....
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....ated 08.04.2013 inter alia reveals that as per policy of Trackon Courier, consignments of Silver/ Gold/ Narcotics etc. could not be taken for booking; no consignment of gold was booked ever by his courier firm from 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; C. No. 319514554 dt. 26.02.2013 was issued by his courier office. This C.N. was generated on 15.03.2013 at his Fancy Bazar Office under pressure and life threat from Ramesh Agarwal and Raju Arora. This blank C.N. was issued to his branch by Trackon Couriers Pvt. Ltd. on 15.03.2013 and in any way; it cannot be issued on 26.02.2013. In fact, the C.N. was issued on 15.03.2013 under threat and pressure of Raju Arora and Ramesh Agarwal; that he also recognized the photograph of Ramesh Kumar Agarwal @ Tony @ Dilip Agarwal. (xix) Shri Ramesh Kumar Agarwal in his statements dated 24.05.2013 and 28.05.2013, inter- alia accepted knowing Raju Arora and that he took him to Trackon Courier Fancy Bazar office where Rajan Kumar Jha was the booking clerk who booked the consignment consistin....
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....ercion from Raju Arora and Ramesh Kumar Agarwal and that he did not write the letter dated 11.04.2013, it becomes clear that the findings of the Adjudicating Authority that the AWB No. 319514554 dated 26.02.2013 which was accompanied with the claim letter of Shri Raju Arora dated 15.03.2013 was not actually issued by Trackon Courier Pvt. Ltd. and it was false and based on afterthought, holds ground. (xxiii) Call Detail Records of the noticees and others involved were also analysed and the complicity is also established that Shri Ramesh Kumar Agarwal, Shri Rajan Jha, Shri Chandra Shekhar Jha and Shri Ranjan Kumar Mishra were in touch with one another over phone and Raja of Dimapur also communicated with Ramesh Kumar Agarwal, Rajan Jha and Chandra Shekhar Jha. (xxiv) Whereas it was claimed that the seized gold was purchased bona fide by Shri Raju Arora under cover of VAT invoices bearing number 4, 7 and 8 dated 18.02.2013, 19.02.2013 & 20.02.2013 respectively of "Shree Shayam Traders, 2034/8, Shop No. 1, South Extn. Part-I, Near Pelinji Kotla Mubarakpur, New Delhi-110003", Shri Atal Bihari Agarwal, Proprietor of "Shree....
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....ring himself as the proprietor of M/s Shyam Traders can be found placed at pgs. 324-326 of the Appeal Petition of Raju Arora. (xxviii) Enquiry at the House No. 2034-8/1, Pilanji Kotla Mubarakpur, New Delhi-03 stated to be the shop of Shri A. B. Agarwal also revealed that M/s Shri Shyam Traders proprietor Shri Atal Bihari Agarwal was rent holder of his shop from December 2012 to January 2013 only, as confirmed by the landlord of above mentioned premises, Shri Pramod Kumar vide letter dated 03.07.2013. Hence the question of issuance of invoices by said Shri Atal Bihari Agarwal from that address on 18.02.2013, 19.02.2073 & 20.02.2013 is false & fabricated. It was also observed that no business activities was carried out from the said rented premises ever by Shri Atal Bihari Agarwal or by M/s. Shri Shyam Traders. As such there is no question of having his permanent residence at the said address as stated in the WP No. 20706(W) of 2013 filed in the Hon'ble Calcutta High Court. (xxix) Further, in the said WP No. 20706 (W) of 2013 filed in the Hon'ble Calcutta High Court by Shri Atal Bihari Agarwal (spelt as 'Atal Behari Agarwal'), said to be Proprietor o....
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....ted 16.10.2012. It was observed S.S. Enterprise, being so big merchant bullion of gold was selling gold to only one party, "Agarwal Traders" over a period of near six months. This kind of singular transaction only to one company over such a long period of time is absolutely un- trustworthy and unbelievable. (xxxiii) Further, Agarwal Traders raised Vat invoices to Shri Shayam Traders at the rate of around Rs. 2950/- per gram whereas Agarwal Traders is itself buying the gold at the rate of Rs 2935 to Rs. 3199/- average of which is much higher than the sale value Rs. 2950/-. It is unfathomable why a business firm will sell gold after concurring a huge loss instead of making a profit. (xxxiv) Conclusion of ld. Adjudicating Authority is that book of accounts of S.S. Enterprise, sale invoice of M/s S.S. Enterprise to M/s Agarwal Traders, sale invoice of M/s Agarwal Traders, sale invoice of M,/s Agarwal Traders to M/s Shayam Traders are totally forged and fabricated. It was logically concluded by him that documents provided in support of selling of gold to Shri Raju Arora by M/s Shayam Traders was false and fabricated. (xxxv) The ld. adjudicating authority....
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....ricated. Also, the claim on the seized gold vis-a vis its weight, purity and nature by producing documents which do not corroborate such facts of seizure of gold by DRI is not proven beyond doubt and hence the burden of proof u/s 123 that the gold is not smuggled in nature has not been discharged by Raju Arora. (xxxviii) In support of the contentions on the subject matter of reasonable belief for seizure of gold, admissibility of statements, absolute confiscation of the gold and imposition of penalty on the appellants, reliance is placed on the following case-law: - • Commr. of Customs(Prev.) Vs Rajendra Damani @ Raju Damani [2024 (5) TMI 730 - CUSTA No. 16 of 2023--CALCUTTA HIGH COURT] • Om Prakash Khatri Vs. Commissioner [2019 (368) E.L.T. A 155 (Supreme Court.)] • Commissioner of Customs, Cochin Vs. Om Prakash Khatri [2019 (366) E.L.T. 402 (Ker.)-High Court of Kerala at Ernakulam.] • Commissioner of Customs Patna vs. Amar Kishore Prasad [2013 (298) E.L.T.711(Pat.)- High Court at Patna] • Commissioner of Customs (Export) Vs. Shri Ashwini Kumar alias Amanullah [CUS AA 37/2021 & CM APPL. 34847/2023 - HI....
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....ms each. Representative samples were drawn from the said gold and sent to the Customs House Chemical Laboratory (CHCL), Kolkata for examination. Thereafter, vide Report bearing No. 31393200/SZD(G)-59-120 dated 07.03.2013, it was reported as under: - SI. No. Box No. Total pcs & description Total samples drawn & there details Purity % (by weight) Remark 1. B-1 19 Pcs. [including two pcs having inscription 10010077 & 10010078] 2 (Two), S-7 (0.844 gms) S-6 (1.592 gms) S-7: 99.95; S-6: 99.96 Total weight of gold contained in box B-1= 4843.518 gms 2. B-2 18 Pcs. [including one pc having inscription 10010075] 2 (Two), S-5 (1.047 gms) S-4 (1.779 gms) S-5: 99.96; S-4: 99.93; Total weight of gold contained in box B-2= 3838.980 gms 3. B-3 18 Pcs. [including one pc having inscription 10010076 3 (Three), S-3 (0.953 gms) S-2 (2.328 gms) S-1 (4.929) gms) S-3: 99.94; S-2: 99.94....
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....rora, the appellant no. 3, approached the Department to claim ownership of the gold and produced three invoices in support of such claim, which pertain to "gold bar" of "99.5" per cent purity, without giving a description of the gold in question inasmuch the numbers / pieces of gold or as to what was the weighment in respect of each piece of gold. In the present case, it is a fact on record that the purity of the gold is 99.93% to 99.96%. In these circumstances, the said invoices cannot be relied upon as evidence of licit procurement of the gold in question. Therefore, the invoices produced as defence / evidence by the claimant/appellant, namely, Shri Raju Arora, are discarded. 21. Thus, in terms of Section 123 of the Customs Act, the appellants have failed to discharge their onus of procuring the gold in question, that it has been procured through licit means. Hence, the authorities below have rightly absolutely confiscated the gold in question. Accordingly, the order of absolute confiscation of the gold in question is upheld. 22. Now, we come to the issue of imposition of penalties on the appellants and other defences raised by the appellants before us. 23. Regardin....