TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1599
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....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 Customs officials visited the pr....
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....t 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 foreign origin, of cream color (....
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....he 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. During investigation, it has come o....
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....es 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 19.05.2015, 6 kgs. of gold bars were recovere....
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.... 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 number, etc. of Joynal to know as to how ....
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....ples 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 strong and conversely the gold in the han....
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....came 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 Para 10 of the reported decision ....
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....ure. 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 confession made by him was because of....
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....ies 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 the gold, the burden under Secti....
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.... 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 448 (Tri.-Kol.....
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....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 informatio....
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.... 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 emanating from....
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.....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 investigat....
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....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, Shashi Ka....
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....e 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 be the....
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.... (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 bills ....
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.... 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 their p....
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....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 to leg....
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.... 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 financial acco....
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....old 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 confirmed ....
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....strated 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 did n....
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....ppen 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 Verma -....
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....re 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 for its ....
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....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 etc. bes....
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....s 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 therefore d....
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....an 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 case ar....
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....s 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 that S....
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....ized 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 also s....
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.... 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 ....
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....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 ....
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....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 examined in th....
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.... 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 prudence and p....
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.... 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 withstood t....
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....ns 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 that the....
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....estigation 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 upon failu....
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....ant 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 instance, ....
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....ployee 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 evidence regarding the li....
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....ndering 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 creation of documents ....
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....ve 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 seized gold under S....
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....ts and circumstances of the case, consequently, the goods are not liable for confiscation, as held by Member (Judicial); or (b) Whether the appellant have failed to discharge their burden under Section 123 of Customs Act, 1962 and hence, the goods are liable for confiscation in the facts and circumstances of the case as held by Member (Technical). (Pronounced in the open court on 29.08.2023) Interim Order No. 2-7/2024, Dated 19-02-2024 PER R. MURALIDHAR: In these Appeals, the following Difference of Opinion has been referred to me for deciding the issue : (a) Whether the appellants have discharged their burden under Section 123 of the Customs Act, 1962 in the facts and circumstances of the case, consequently, the goods are not liable for confiscation, as held by Member (Judicial); Or (b) Whether the appellant have failed to discharge their burden under Section 123 of Customs Act, 1962 and hence, the goods are liable for confiscation in the facts and circumstances of the case as held by Member (Technical). 2. When the Appeal was taken up for Hearing, the Ld. Counsel appearing on behalf of the Appellants submits th....
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....re case law for which he was given time till 19.01.2024 to submit the hard copies as well as soft copies to the Registry. Accordingly, he has submitted these case laws which have been taken on record. 5. The Ld. Authorized Representative for the Department submits that the Member (Judicial) has gone into the facts of documentary evidence towards purchase directly without giving any finding on the initial two statements made by the Appellant No. 1-4 in the space of nearly 90(ninety) days and subsequent retraction after about 7(seven) months. He submits that first of all the question has to be decided as to whether the retraction can be considered or is proper before going to the next aspect as to whether the facts contained in the third (retraction statement) are correct or not. Further, he submits that any prudent person would have the duty to remember about the transactions and the dates on which the seizure was made, statements were recorded, statements were allegedly retracted and the documentary evidence was produced towards the procurement of goods by the Appellant No. 5. He takes me through the various findings given by the Hon'ble Member (Technical), wherein he has gone i....
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....n by him to Shashi Kant Patil towards the seized gold from Shashi Kant Patil 14.08.2015 Shashi Kant Patil fails to appear though the summons was issued for the third time 23.09.2015 Rinku Verma fails to appear before the authorities despite service of summons. 12.10.2015 The appellants 1 to 4, 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, submit that the same may be returned to Rinku Verma [Appellant No. 5], who for the first time claims the ownership of the seized gold. 16.10.2015 Shashi Kant Patil, appears before the authorities for the first time. He denies having sold any quantity of gold to Rinku Verma or having received any cash payment from Appellants 1 to 4. 26.10.2015 Rinku Verma, the claimant of the gold, appears before the authority for the first time, post seizure. He submits 4 invoices towards purchase of gold from Snehal Gems Pvt. Ltd. 14.12.2015 Summons issued to Director/Partner/Proprietor of Snehal Gems. But he does not appear before the authorities 08.01.2016 Pradeep Kumar Bothra, Director of Snehal Gems Pvt. Ltd, appears befo....
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....ken place vide these 4 Invoices. He also produces their own purchase Invoices so as to prove that the gold in question was sold to Rinku Verma out of such procured gold. 7.6 It is noted that till 28.7.2015, the recorded statements stated that the gold has been purchased on cash basis from Shashi Kant Patil by the Appellants 1 to 4 and they were carrying the same for handing over to Rinku Verma [Appellant Number 5]. Hence, he was yet to receive the gold procured from Shashi Kant Patil. This was the stand till 28.7.2015. However, on 26.10.2015 while staking the claim for ownership, Rinku Verma, submits that the gold is question was already purchased from Snehal Gems Pvt Ltd by way of 4 Invoices. He claims that he has sent these gold bars through Appellant No. 1 to 4 for getting same converted into jewellery. Appellants 1 to 4 in their retracted statement dated 15/16.2.2016 also state that they were carrying the gold given to them by Rinku Verma for onward delivery to others for conversion into jewellery. Thus, there is a complete Role Reversal so far as Rinku Verma is concerned. 7.7 While it is a case of complete Role Reversal, still what emerges is that under both the Roles, R....
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....ku Verma has claimed that he has purchased the gold in a licit way through the 4 Invoices issued by Snehal Gems Pvt Ltd. Admittedly, the banking transactions and ledger details towards these Invoices were provided by him in support of his claim. 14. The Hon'ble Apex Court in the case of CCE Nagpur Vs Ballarpur Industries Ltd - 2007 (215) ELT 489 (SC) has held "It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest". It has also been held in catena of decisions, that the allegations in the Show Cause Notice are the pillars / foundation of the entire proceedings. Not only the investigations should be conducted in an exhaustive manner, but also proper conclusion should be arrived at in the Show Cause Notice, with specifics of allegations on the roles played by various Noticees. Therefore, it would be important to go through the relevant portions of the Show Cause Notice, which are reproduced below [Para Numbers given are not that of the Show Cause Notice, but are supplied for convenience of reference here] : (a) In his voluntary statement recorded under Section 108 of the Customs Act, 1962, Raghendra....
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....n Park, Allahabad but when he was asked that there were communications made from his mobile number 9051583855 to mobile number 7388103677 of Rinku Verma, he replied that so many customers used to call him to ask the rate of gold, hence it may be that there have been communications with mobile number 7388103677. He also denied to identify the four accused of the case Sourabh, Raghendra Kumar Dhuriya, Shubham Verma & Golu Verma and stated that he had not sold any gold to them on 19/05/2015. He further stated that on the day of 19th May, 2015, he sold 366.300 gms gold and 212.450 gms of gold vide Voucher No. 41 & 42 dated 19/05/2015 to Maheshwari Refinery, Nabadwip which is evident from the sale invoices. (e) On 16/10/2015, Rinku Verma tendered his statement under Section 108 of the Customs Act, 1962 in response to the Summons issued vide C. No. VIII(10)02/P&I/CCP/WB/2015-16/1114 dated 09/10/2015 wherein he stated that he has been doing the business of sale & purchase of gold and gold jewellery from Delhi, Mumbai and Kolkata and he operates his business from his shop at 90/A/107, Mahajani Tola, Allahabad. He further stated that he knows Raghendra Kumar Dhuriya, Sourabh, Shubh....
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....uriya, Sourav, Subham Verma & Golu Verma. In reply to question that Rinku Verma has claimed that the seized 6 kg gold was purchased by him from M/s Snehal Gems Pvt. Ltd., P.K. Bothra replied that he had sold 6 kg gold to Rinku Verma as (i) GOLD/MAY/1/2015-16 dated 02/05/2015, (ii) GOLD/MAY/2/2015-16 dated 05/05/2015, (iii) GOLD/MAY/3/2015-16 dated 09/05/2015, (iv) GOLD/MAY/4/2015-16 dated 12/05/2015 and inscription and origin of country of the seized gold, he stated that he had sold 6kg gold vide the said four bills/invoices but could neither state the inscription and origin of country of the gold sold nor could confirm that the seized gold is the same gold which was sold by him to Rinku Verma. Further, he could not provide any import documents regarding the gold sold. When, he was asked the reason for tampering of SI. No. of the bars, he could not state any reason. He also tendered some payment related documents but could not confirm that the relevant payments were made for the seized gold. (h) Thereafter, at the final stage of investigation, unexpectedly letters were received from the four accused persons i.e. Raghendra Kumar Dhuriya, Sourabh, Subham Verma and Golu Verma....
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....t. Ltd. has been trying to legalize his unauthorized and illegal transaction by submitting non-relevance documents. It also appears that on the direction of Rinku Verma, all the four accused persons have tendered false and fabricated statements to support illegal activity of Rinku Verma and to avoid legal proceedings. Thus, the seized gold is liable to confiscation under Section 111 of Customs Act, 1962 and the said four accused persons and claimant of the seized gold Rinku Verma are liable to be penalized under Section 112 and 114AA of Customs Act, 1962. Pradeep Kumar Bothra, Director of M/s Snehal Gems Pvt. Ltd. who had tried to harbor the smuggling activity of Rinku Verma is liable to be penalized under Section 114AA of Customs, Act, 1962. (j) In terms of Section 123 of the Customs Act, 1962 where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the persons, who claims to be the owner of the goods or from whose possession the goods so seized were recovered. This section applies to gold and articles of gold. The main accused in this c....
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....e invoices. The noticee had duly produced original copies of such purchase invoices before the investigating authority at the time of investigation with him. (ii) That from the Show Cause Notice it appears that investigation was also caused with M/s. SGPL when their Director, Shri Pradeep Kumar Bothra had duly appeared before the investigating authority and tendered his statement dated 08.01.2016 under Section 108 of the Customs Act, 1962 and confirmed sale of such goods under the said invoices in favour of Shri Rinku Verma. In reply to question no. 3, in his statement dated 08.01.2016, Shri Bothra categorically acknowledged issuance of invoices and sale of gold. In reply to question no. 12 & 13 respectively in this statement dated 08.01.2016; Shri Bothra had confirmed purchase of gold from local dealers and submitted payment details received from Shri Rinku Verma. He had duly produced his purchase documents along with stock, sale, purchase registers as well as Ledger Account maintained with respect to sale in favour of Shri Rinku Verma. Such documents are duly enclosed as relied upon documents under covering letter dated 18.05.2017 duly issued by the Ld. Superintendent of....
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.... to work for him. He also stated that he had been doing the business for last one year with Shashikant Patil of M/s Dhanlaxmi Bullion Pvt. Ltd., 43, Nalini Seth Road, 1st Floor, Room No. 101, Sonapatty, Kolkata. However, I find that he could not provide any sale-purchase documents or any transactional evidences in support of his aforesaid claims. Rinku Verma also stated that he does the business of sale and purchase of gold and jewellery with Meera Jewellers of Delhi, Snehal Gems Pvt. Ltd. of Mumbai, Shashikant Patil and Pradeep Guptra of Kolkata. I find Rinku Verma has claimed that 6 kg gold recovered from the possession of Raghendra kumar Dhuriya (02 kg gold of foreign origin), Shubham Verma (02 kg gold of foreign origin), Sourabh (01 kg gold of foreign origin) and Golu Verma (01 kg gold of foreign origin) was purchased by him from Snehal Gems Pvt. Ltd., Bidg. No. 6/127, Mittal Industrial Estate Andheri, Jurla Road, Andheri East, Mumbai-400059 vide the following bills- (i) Bill No. GOLD/MAY/1/2015-16 dated 02/05/2015 (1 Kg gold), (ii) Bill No. GOLD/MAY/2/2015-16 dated 05/05/2015 (2 Kg gold), (iii) Bill No. GOLD/MAY/3/2015-16 dated 09/05/2015 (2 Kg gold) and (iv)....
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....he shop of Shashikant Patil @ Banti at Dhanlaxmi Bullion Pvt. Sonapatty, Kolkata and the aforesaid gold bars were to be handed over to Rinku Verma in Alahabad. The aforementioned claim was also confirmed by them in their subsequent statements dated 28.07.2015. However, subsequently at the final stage of investigation, letters were received from the four accused persons i.e. Raghendra Kumar Dhuriya, Sourabh, Subham Verma and Golu Verma wherein all of them claimed that the gold seized from their possession was given to them by Rinku Verma of Allahabad for the purpose of getting gold jewellery in exchange of the same from Sonapatty, Kolkata and they also claimed that their statements recorded on 19/05/2015 were not proper, correct or voluntary. I thus find that the 04 (Four) apprehended persons gave contradictory statements before the investigating authorities. It is thus evident that the statements rendered by the aforesaid 04 (four) apprehended persons before the investigating authorities are false and have been made with the sole intention to mislead the investigation. It is also evident that on the direction of Rinku Verma, all the aforesaid four apprehended persons have tendered ....
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....nku Verma but could not state the inscription and origin of country of the gold sold to Rinku Verma. Pradeep Kumar Bothra did not furnish any import documents regarding the gold sold to Rinku Verma and could not confirm that the seized gold is the same gold which was sold by him to Rinku Verma. He could not state any reason for tampering of the serial number of the bars. Besides, Pradeep Kumar Bothra could not confirm the relevant payments made for the seized gold. I thus find that Pradeep Kumar Bothra could not furnish any licit documents to confirm that the seized gold had been sold by him to Rinku Verma. However, Pradeep Kumar Bothra admittedly claimed that he had sold 06 (Six) kgs of gold vide the 04 (Four) bills submitted by Rinku Verma. I thus find Pradeep Kumar Bothra, Director of M/s Snehal Gems Pvt. Ltd. had knowingly, willingly and voluntarily connived with Rinku Verma to corroborate the purported gold purchase documents submitted by Rinku Verma to ostensibly claim that the smuggled gold was legally obtained. I find Pradeep Kumar Bothra has actively, consciously and deliberately involved himself in the gold smuggling activities of Rinku Verma and has harboured the smuggli....
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.... they have not been able to properly ascertain the source of gold and their version is concocted to help Rinku Verma. Therefore, as per this Para (h), the Revenue takes the view that the earlier version of procuring the same on cash from Shashi Kant Patil looked more probable. 19. Para (i) details the past actions of the Appellants. It states that the Appellant No. 1 to 4 have tendered false statements as per the directions of Rinku Verma.It also speaks of 'connivance' of Pradeep Kumar Bothra who' had tried to harbor the smuggling activity of Rinku Verma'. 20. Para (j) states that Appellant No. 1 to 4 are the main accused and Rinku Verma is the claimant of the gold and they have not been able to discharge the burden of proof under Section 123 of the Customs Act 1962. 21. The framing of the allegations vide the above Paragraphs raises many questions: (i) When all the earlier leads were clearly pointing out to the cash transactions by way of purchase from Shashi Kant Patil, as to why this lead was completely abandoned immediately after the statement recorded by him on 16.10.2015, is not known. (ii) Except for the small notings about 'connivance' and 'trying....
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....entive), Adjudication Branch, CC(P), WB, Kolkata in favour of my above named client. As such, the fact of purchase of gold by Shri Rinku Verma and sale of the same by M/s. SGPL in his favour were corroborated during the course of investigation by way of adequate, proper and legal documents before the investigating authority. The seller of the gold had also acknowledged & corroborated such fact and produced documents to substantiate his source of gold and stock as on date of sale in favour of the present noticee no. 5. (iii) That in the present Show Cause Notice, nowhere such documents produced by the present noticee as well as M/s. SGPL have been alleged or established on evidence as false, incorrect or forged in nature. (iv) However, how the documents produced by the present noticee and/or M/s. SGPL are of no relevance, has not been illustrated in the Show Cause Notice. Thus the allegation is absolutely vague in nature. The investigating authority could not point out that any of the documents produced during the course of investigation by noticee no. 5 and/or 6, are false, incorrect or forged in nature. In absence of such allegation that the documents are false, ....
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....re also submitted to the effect that the entire transaction is licit one. Rinku Verma has submitted supporting documents in the form of Ledger copies and Banking transactions details. The Dept. is relying on the statement of Pradeep Kumar Bothra to the effect that he cannot vouch if the gold sold by him is the same one which has been seized. But on this basis alone, the Dept. cannot come to a conclusion that the claim of Rinku Verma is not correct. They were required to go into further depth to check the Banking Transactions between Rinku Verma and Snehal, Snehal and their Vendor to prove that the claim of Rinku Verma was not correct. There is nothing to indicate from the Show Cause Notice and the Order in Original to show that such an exercise was undertaken. The relevant extracts of SCN discussed above, has not brought in any evidence whatsoever to fortify their allegations against the Appellant No. 5 and 6. 27. Secondly, as observed from the chronological Table, till 28.7.2015, all the initial leads point out to the role of Shashi Kant Patil for having sold the gold on cash basis to Rinku Verma. He issues a simple denial on 16.10.2015 and subsequently, this lead is given a qu....
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....id / relevant they may be, would at best remain as observations only. Therefore, these observations cannot form the basis to arrive at the conclusion as to whether the Appellant has discharged the onus of burden of proof under Section 123. It can be done only on the basis of the Documents produced by the claimant of ownership [Noticee / Appellant No. 5] and documents produced by the Noticee / Appellant No. 6. In order to negate / refute the claim of the Noticee 5, the onus had shifted to the Revenue to undertake proper investigation to check the veracity of these documents for coming to their conclusion. The factual matrix discussed above, does not suggest that anything to this effect was undertaken by the Revenue. 31. Since the facts of the present case are very similar [probably less severe than in the cited case law], it may be relevant to go through the judgement of Bombay High Court in the case of UOI Vs Imtiaz Iqbal Pothiawala - 2019 (365) ELT 167 (Bom) (i) The grievance of the Revenue as brought out in this question is that the burden of proof cast upon the respondent under Section 123 of the Act, that they were not smuggled goods, is not discharged. This we note....
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...., so much so he is unable to explain the source of the funds to purchase the gold. This for the reason that though he states that the money was borrowed, he is unable to state the name of the persons who lent him the money. It is further submitted that there were differences in bills issued for sale of gold by [M/s. Paras Bullion and M/s. Pavan Jewellers], then those used for sale to other persons. There were also discrepancies in the statements regarding delivery of gold either in Ahmedabad or in Mumbai. It is emphasized that the respondent No. 1 had made telephone calls to Dubai. All the above facts, according to the Revenue, would establish that the seized gold bars were smuggled and the respondent No. 1 had failed to discharge the burden cast upon him under Section 123 of the Act. (ix) The impugned order dated 3rd June, 2005 has held that the respondent No. 1 has discharged the burden of proof under Section 123 of the Act. This as the respondent No. 1 had explained the source of his purchase namely from [M/s. Paras Bullion and M/s. Pavan Jewellers]. In fact, the person running two firms viz; - Mr. Bhupendra Thakkar has himself admitted in his statements to the Office o....
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....their accounts were audited by a Chartered Accountant and relevant income-tax returns were also produced to establish the existence of [M/s. Pavan Jewellers]. Further, the Tribunal found that [M/s. Paras Bullion and M/s. Pavan Jewellers] were firms in existence and not fictitious firm. This finding of fact, on the basis of record, is a possible view as the Revenue in the face of the above record with the authorities, did not investigate further or bring on record evidence to demolish the evidence brought on record by respondent No. 1. The impugned order dated 3rd June, 2005 thus noted that the discrepancies noted ought to have been pursued further. This not having done, results in the explanation offered by respondent No. 1, being accepted. 32. In the present case also, the Purchase Invoices have been produced by the Appellant Number 5. The Revenue has found that the Vendor in question is existence and his statement has been recorded and in fact has been made Noticee Number 6. While admittedly, there has been unexplained delay in producing the documentary evidence, non-acceptance of the same or casting doubts on the same on this ground alone is erroneous, without in-dept verific....
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....e lackadaisical approach of the Revenue resulting in a Show Cause Notice lacking several elements, any painstaking findings by the Bench, which may implicate the Appellants, cannot come to the rescue of the Revenue. The prime reason being that the appellants were never put to notice on these issues and cannot be asked to defend the same at Tribunal level after about 9 years after the event has taken place years [Seizure happened in May 2015] and when the Show Cause Notice was issued in April 2016. This would go against the principles of natural justice. In other words, the shortcomings of investigation and lack of proper allegations in the Show Cause Notice, cannot be overcome by any factual details ascertained by Tribunal now. With due respect, I take that the view that these would, at the most, remain as observations only and cannot be used for coming to a conclusion to implicate the appellants. 35. To summarize my conclusions : (a) The Show Cause Notice has proceeded on an erroneous notion that the burden of proof is required to be jointly discharged by Appellant No. 1 to 4 along with Appellant No. 5. In fact the only person who would be required to discharge the bur....
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.... discharged under Section 123 and hold that seized goods are not liable for confiscation. 36. The reference is answered and the difference of opinion stands resolved on the above terms. The papers may be put up before the Division Bench for deciding and releasing the Final Orders. (Pronounced in the open court on 19.02.2024) Sd/- R. Muralidhar Member (Judicial) FINAL ORDER NO. 75287-75292/2024 DATE: 21st February, 2024 In view of the majority decision, the appeals are allowed. Sd/ (Rajeev Tandon) Member (Technical) Sd/ (Ashok Jindal) Member (Judicial) ============= Document 1 DAFFODILO UNO , GUUREJ ON! GARDEN TAKKA,PANVEL,NAVI MUMBAI 400206. run-Iv Delivery ....