TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 631
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.... the gold at Mumbai and Hyderabad and sold the same at his native place i.e. Latur, Maharasthara mostly. 3. The Appellant is the real and true owner of the Gold Bars which were in the Custody of DRI (28 gold bars of 100grams each of 'Valcambi' mark, totally weighing 2800 grams), the said Gold Bars-999 having with a Valcambi marks on his Gold Bars, as a matter of fact the Appellant has purchased a Thirty Three (33) Gold Bars of Valcambi-999 made total weight of 3300 grams from his vendor M/s Ambica Bullion situated at 10/B, Glitz Mall, 99, Vithalwadi, Kalbadevi, Mumbai on 12.09.2017 vide invoice No. 502 for Rs. 99,33,000/- and also paid SGST of the Rs. 1,48,995/- CGST of Rs. 1,48,995/- the totalling the value of Rs. 1,02,30,990/-) in support of his claim. The statement of Shri. Kailash Bhai of M/s Ambica Bullion, Mumbai is valid sufficient proof of gold. 4. The appellant submitted that, after purchase of said Gold Bars on 13.09.2017 he was travelling from CST Mumbai to Hyderabad by Rail i.e. LTT Visakhapatnam Express in general compartment to visit his co-brother's house at Hyderabad who was suffering with ill-health, he carried the said quantity of the Gold along with the val....
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....and even though he did not considered the evidence submitted by the Appellant, on that result, the investigation officer rejected to return his Gold Bars. 5. The Appellant submitted that, thereafter, the Pune Railway Police got the information from Hyderabad Railway Police about the recovery of 28 Gold Bars, the Pune Railway Police had send the details of the Appellant case to the Hyderabad Railway Police (the description about the Gold Bars packing material are exactly matched as per report made by the Appellant at Pune Railway Police) Where upon Hyderabad Railway Police called the Appellant and recorded his statement, thereafter, they informed to the Appellant they handed over to the possession of the recovered 28 Gold Bars to the officers of the Department of Revenue intelligence, Regional Unit, at Hyderabad (the DRI) and advised him to collect back them by showing proper documents to them. 6. The Appellant submitted that, he along with the officers of the Pune Railway Police has approached the Respondent Authority i.e. DRI, Hyderabad and submitted the all relevant documents pertaining to his Gold Bars as proof of legal purchase along with GST & CGST payment and which stat....
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....nd had legally purchased the Gold Bars. The same facts establishes from the statement of Shri Ishant Kailash Jain who admitted the same. The Gold Bars having Valcambi marking were recovered by the Hyderabad Police were absolutely matched along with description of package, but the remaining 5 Gold Bars are not yet recovered by the Authority. The Investigation officer did not consider the statements of his guarantor and mediator (i.e. Shri Dhanabai Modi) (who is main witness to reveal the truth to purchase of Gold Bar from the vendor) which was recovered by Railway Police Station officers at Pune, but the Respondent Authorities intentionally was not taken any statement from them nor considering their statement and received the affidavit and Co-brother, but never considered their affidavits. 12. The Appellant submitted that the Appellant was get down the train at Begumpet Railway Station on when said train was stopped on 13.09.2017, said fact was not considered by the Respondent. Authorities have failed to produce any piece of evidence of proof regarding to Gold Bars are not belongs to Appellant. The Respondent never considered the appellant phone calls records and phone calls hist....
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....d alighted at Begumpet. He further travelled by local train from Begumpet to Hyderabad on reaching his Cobrother's home he observed that the Gold Bars kept in an underwear in his trolley bag were missing, he suspected theft by some persons who travelled in the same bogey and got down at Pune and he lodged a complaint at Pune on 16.09.2017. The invoices produced by the Appellant could not connect it to the gold seized. Appellant does not produce any evidence supporting his journey as claimed by him. The Railway Authority vide Letter dated 16.10.2017 informed that LTT Visakhapatnam Express does not have a scheduled halt at Begumpet Station and the train on 13.09.2017 had not stopped at Begumpet station as per guard's report. Thus, the claim of the Appellant having travelled by LTT Vishakhapatnam Express on 13.09.2017 was not supported by any evidence and Railway Police, Hyderabad have also not recovered any document relating to his travel or purchase documents of the said gold during their seizure. The Invoice No. 502 dated 12.09.2017 of Ambica Bullion was issued to Ramdev Bullion for 3300 grams of Gold Bars. Learned AR, stated that Ishant Kailash Jain of Ambica Bullion stated that t....
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.... were of Valcambi make and 22 bars of MMTC Pamp make. The Appellant claims that there were 5 Gold Bars of '999-Pamp' out of the 33 bars purchased from Ambica Bullion. Investigation revealed that Raj Gold and Diamond had admittedly supplied 22 Gold Bars with MMTC-Pamp marking. The 28 Gold Bars seized had Valcambi Suisse marking and no Gold Bars with MMTC-Pamp marking. Thus, the claim of the appellant bars to be false. Further, the Appellant has not produced any travel ticket to justify his travel claim and also the train had no scheduled stop at Begumpet on the said date. The marking on the gold indicate it is of foreign origin. No documents are found showing payment of duty. Therefore Section 123 of the Customs Act, will be apply The Appellant has failed to prove that he is the owner of the seized gold. 19. Heard both the sides and perused the records. 20. The appellant has stated that he carries on the business of gold and silver under name M/s Ramdev Bullion, Latur. On 12.09.2017, he purchased 3,300 grms of Gold Bar from M/s Ambica Bullion, Mumbai for a total value of Rs. 1,02,30,990/- including CGST and SGST. The invoice issued by Ambica Bullion, Mumbai in this regard subs....
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....on discovering that his Gold Bars were missing, he was initially stunned and loss consciousness for a while. After regaining composure, he lodged First Information Report (FIR) at Pune Railway Station. The FIR registered as No. 504/17 under Section 379 of Indian Penal Code on 13.09.2017 at 9.30 A.M. The Department has argued that the FIR was registered at Pune Railway Station, whereas, the theft was discovered in Hyderabad. The appellant has explained that during the journey, he developed an upset stomach and went to the toilet, leaving the concealed gold in his bag. At Lonavala Station, two passengers boarded and sat on the upper berth where his bag was kept. They later got off, which made the appellant suspicious of them. Therefore, he might have lodged the FIR at Pune Railway Station. Furthermore, this was a continuing offence and appellant was entitled to lodged the FIR at any place during the journey. Hence, the department is argument that the FIR should have been lodged at Hyderabad or any other station has no significance. The FIR was lodged as soon as reasonably possible after the occurrence. It is also important to note that the Hyderabad Railway police Station registered ....
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....c. Linesman, Badge No.24, Rly. Coollie, Hyderabad Rly. Station, r/o H.No. 3-4-937/30, Ratna Nagar, Barkathpura, Hyderabad, my duty was at Hyderabad Rly. Station on 13.09.2017 between 11.00 hrs to 14.09.2017 11.00 hrs. During my duty time i.e. on 13.09.2017 night at 23.00 hrs myself and other rly. Coolies were with me, Gaddam Naresh and Auto Driver, Syed Iqbal by patrolling coming to portico side, Gaddan Naresh leg some item touched him as he felt, immediately it was taken and seen, it is of one white necker nada patti rolled in one news paper, and over it packing plaster brown colour pasted. It is opened and seen, in it gold biscuits were there." 25. Similar statement were given by Syed Iqbal (Auto Driver) and Gaddam Naresh (Railway Coolie). Therefore, the said Gold Bar were recovered just after completion of appellant journey. It is also important to mention that the statement given by these persons that it is one Necker nada patti rolled in one newspaper, and over it packing plaster brown colour pasted. This facts also corroborate statement given by appellant, in which method appellant was kept the purchased Gold Bars. 26. Railway Police Station Hyderabad by letter dated 19....
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....tion vide CR. No. 504/2017, as 379 on complaint of Subhash Bhanvarlal Verma, Age. 57, r/o 491/1 A, sutmil road, Latur about theft of 33 gold biscuits of price 1,02,30,990/-, approx and other documents. While investigating the matter we came to know the Hyderabad Railway Police have seized gold biscuits and have registered offence vide CR.No. 217/2017 u/s 41(1) (b), 102 crpc, 403, 201 r/w 34 IPC. They have handed over custody of gold biscuits to your department for further enquiry. Complainant in our case has claimed these gold biscuits and he is to approach your office. So, we request you to furnish the information above whether the enquiry is completed. If enquiry is completed, inform us our pune Railway Police Station e.mail id - ps. Pune. prly mahapolice.gov.in, before handing over custody of gold biscuits to complainant." 28. The above facts corroborates the appellant statement and enhance the credibility of his version. The department has argued that the appellant claimed to have purchased 33 Gold Bars, whereas only 33 Gold Bars were recovered. However, in the FIR lodged by the appellant, the number of the Gold Bars reported stolen was also 33 in ....
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.... department failed to examine appellant's claim of ownership properly. Even at the time of Adjudication as well as appellant stage, they failed to consider appellant's claim, which was based on credible trust worthy evidence. It is also important to mention that in the show cause notice, it is admitted fact that no other person has approached either Hyderabad Railway Police or the DRI office for claiming the ownership of the said seized Gold Bars. Thereby, no other claimant except appellant has claimed of the recovered Gold Bars. 31. Learned Counsel for the appellant relied on principle bench of CESTAT Delhi decision Ram Lubhaya V/s Commissioner of Customs, New Delhi [2002 (147) E.L.T. 807 (Tri-Del)] in which held that gold seized by Railway police and transferred to Customs authorities subsequently - No presumption as to smuggled nature of gold biscuits capable of being drawn under Section 123 of Customs Act, 1962 - Burden lies on Customs authorities to prove by positive evidence that biscuits smuggled into India illegally without payment of duty. 32. Learned Counsel also relied on Kolkata CESTAT decision Subham Verma V/s Commissioner of Customs [(2024) 16 Centax (Tri-Cal)] ....