TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 1736
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....t they were carrying any Gold/Valuable or any prohibited goods etc. They were taken to office of Indigo Airlines situated at T-1, IGI Airport for further questioning. During personal search of Appellant No. -1, following items were also recovered: (i) PAN card bearing no. AWBPJ6277D (ii) Driving Licence bearing no. DL-0220070029017 (ii) One letter head of Ganesh Trading Co., Guwahati bearing details of gold of 99.40 purity but with blank details of weight, pieces of gold, flight number and date on it. (iv) Indigo E-ticket bearing booking reference no. QYKR2T for traveling on 18.01.2016 from Guwahati to Delhi for Flight No.6E 222. During personal search of Appellant No. -2, Election ID Card, Driving License, Press ID card were recovered. 1.2 During search of luggage carried by Appellant No. 1, 5 pieces of yellow- colored metal bars weighing 8306.5 grams purported to be gold bars were recovered. Eight pieces of yellow-coloured metal bars weighing 13293 grams purported to be gold bars were recovered from the luggage carried by Appellant No.- 2. Shri Vikram Bhasin, Jewellery Appraiser, IGI Airport New Delhi examined the above recovered items and appraised them to be gold....
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....IP' of Shri Praveen Kumar Jalan were also placed under seizure under the provisions of Customs Act, 1962 vide Panchnama dated 18.01.2016 drawn at New Delhi. Both the appellants were placed under arrest. 1.4 During further investigation, the statements of all concerned were recorded. The call details analysis were procured from M/s. Vodafone vide letter dated 27.01.2016. M/s. Airtel Limited also submitted the required call details in response to letter dated 19.02.2016. 1.5 Appellant no. 1/Shri Praveen Kumar Jalan in his statement dated 19.01.2016 stated that he prepared document related to purchase of gold on letter head of M/s. Ganesh Trading Co., Guwahati which has no real business and existed on paper only; that since August, 2015 he had received smuggled gold 10 times, 5 times with Appellant No.1 and other times received the smuggled gold from unknown persons by himself. He produced token messages showing images of five-rupee notes used as identification token. The gold came from Myanmar to Imphal via land route and finally delivered in Guwahati; that while taking delivery on 17.01.2016; that he noticed presence of Mizoram registered car whose exact number is not remember....
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....s. Based on the said entire investigation, all statements, records and the documents recovered, department formed the opinion that Shri Praveen Kumar Jalan and Shri Gauttam Mour were in constant touch with each other during the material period of time and were having conversation in the context of gold smuggling. Shri Prabhash Kumar Jalan was also involved. Accordingly, vide Show Cause Notice No. 34/2016 dated 15.07.2016 13 numbers of gold bars has recovered from Shri Praveen Kumar Jalan and Shri Gauttam Mour total weighing 21599.5 gms in weight and two number of gold bars recovered from Shri Prabhash Kumar Jalan total weighing 2000.15 gms were proposed to be absolutely confiscated under Section 11(d), (i), (j), (l) and (m) of the Customs Act. Penalty was also proposed to be imposed upon three of the appellants. The said proposal has been confirmed initially vide Order-in-Original No. 517/2021-22 dated 31.03.2022. The appeal against the said order has been rejected vide the impugned Orderin- Appeal. Being aggrieved the appellant is before this Tribunal. 2. We have heard Shri Bipin Garg, Shri Vinit Kumar and Ms. J. Kainaat, learned Advocates for the appellant and Shri S.K. Rahman....
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....provide opportunity to the appellants to crossexamine them. Hence neither the panchnamas nor any statement can be relied. 3.3 It is also submitted that as per Section 123 of the Customs Act, 1962, the seizure of the goods should be with the reasonable belief that seized goods are smuggled goods. There is no evidence at all for department having reasonable belief. It is a case of town seizure and not intercepted at the Port Area. There is no evidence of Defacing of Gold Bullion. Seizure is only on presumption and assumption basis. Hence burden of proof was still on department 3.4 Finally it is submitted that the adjudicating authority has confirmed the confiscation and imposed the penalty observing the admission of the appellants about smuggling of the impugned gold. However, the authorities have failed to appreciate that both the appellants had retracted their statements on 20.01.2016. To support his submissions learned counsel has relied upon the following decision: (i) M/s. Purushottam Jajodia Vs. DRI reported as 2014 (307) ELT 837 (Del) (ii) K. Abdulla Khnhi Abdul Rehman Vs. Addl. Commr. reported as 2015 (330) ELT 14 (Kar.) Accordingly, order under challenge is pr....
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.... Representative further submitted that the Appellant tried to pass the onus to prove the legal importation of the seized gold to others but finally admitted the whole mechanisms of smuggling. He contended that he received the gold from Amit jalan under good faith that the gold was legally imported and cleared after duty payment. However, it was for him to ensure this aspect and should have accepted the offer thereafter only. Secondly, statement of the co- noticee to the effect that he supplied gold to the appellant earlier also on previous occasions has demolished in entirety the claim of the appellant that he received the gold in good faith and that he was under impression that the gold was legally imported and cleared after duty payment. Call location records of the appellant goes to prove that he was in same location as per the statements of others. This indicates that the appellant was part of the conspiracy with intention to commit an offence and had been engaged in disposal of the smuggled gold in the market for monetary consideration. With these submissions, it is impressed upon that there is no infirmity in the order under challenge, appeal is accordingly prayed to be dismi....
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....glers will erase the Foreign Marks purity content marks and country of origin marks, embossed on the gold bars and will cut them into pieces of asymmetrical sizes so that its original form/shape is lost. This makes the job of the Customs Officers difficult to prove that the gold is smuggled one. In this background concept of everse burden of proof under Section 123 of the Customs Act, helps the Customs Officer to prove the guilt of the smugglers perfectly. The reverse burden of proof mandates issue of show cause notice to the person from whose possession the gold was seized/person claims to be the owner of seized gold to discharge the burden of proving that it has been procured through licit channels/means. 6.3 The section required that the seizing officer either by his own observation or based on other materials produced before him, has to show satisfaction that there was ground for him to reasonably believe that the goods were smuggled goods, that is to say that the goods were imported into the country and imported at a time and place when they were restricted or prohibited from being imported. If the authority is not satisfied that the goods were seized on a reasonable belief....
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....al connection between the facts on which the presumption is raised and the fact to be proved, so that whatever other constitutional infirmity might attach to the impugned provision, the lack of rational connection is not one of them. 6.4 From the above discussion, it is clear that for invoking Section 123 of the Act, it would be necessary that before any person could be called upon to prove that the goods seized from him were not smuggled goods, that the customs officer making the seizure must proceed upon the foundation of a reasonable belief inspired in him by some definite material by way of some definite information or otherwise so that he could be said to have seized the goods in a reasonable belief that they were smuggled goods as was held in Bapalal v. Collector of Central Excise, Air 1965 Gujarat 135 (23). 6.5 Reverting to the facts of the present case, we observe following: (i) The department had the prior specific information about the appellants carrying the smuggled gold. The appellants were intercepted at Terminal - 1 of IGI Airport, Delhi while arriving from Guwahati to New Delhi on 18.01.2016. (ii) Appellants had not declared any valuable as that of gold ....
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....possession of such quantity of gold with him. Appellant no. 3 is none but the real brother of appellant no.1 and 2 gold bars secreted under mattress were recovered from his premises with no document justifying the possession thereof with him. The proprietor of M/s. Aggarwal Jewellers namely Shri Punit Aggarwal also denied issuing any slip in the name of M/s. Ganesh Trading Co. In the light of these statements, the only document i.e. the letter head of M/s. Ganesh Trading Co. which was produced at the time of interception of the appellants at the airport stands falsified. 6.8 We further observe that during the seizure, the appellant had submitted documents related to cash flow statements, account ledger of parties, statements of gold as in stock, audited balance sheets of his bullion trading firm M/s. Shri Ganesh Traders, Delhi for the Year 2006-07 and 2007-08 claiming that the seized gold is owned by him as being transferred from M/s. Shri Ganesh Traders to M/s. Ganesh Trading Co. But those documents have been held by Commissioner (Appeals) to be highly insufficient to prove the shifting of gold from M/s. Shri Ganesh Traders to M/s. Ganesh Trading Co. The gold in question is rec....
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....preciate that both of them had retracted their statements before the criminal court. Shri Praveen Kumar Jalan retracted his statement dated 19.01.2016 on the very next day i.e. on 20.01.2016. But the perusal of the said statement, on record, reveals that there is not specific retraction vis-à-vis the above observed admissions. Above all the retraction was not made before the same officer who recorded the confessional statement. Hence, to our opinion the retraction does not extent any benefit to the appellant. What remains admissible is the appellant's admission which needs no further proof in terms of Section 52 of Indian Evidence Act. Though the appellant have also reflected their grievance about denial of opportunity to cross-examine but we observe that present is the case of recovery of concealed undeclared gold at the customs barrier, the document shown at the time of interception was insufficient and incomplete and that no evidence could still be produced by the appellant's as required under Section 123 of the Customs Act, 1962. We hold that the failure to give the opportunity of cross-examination to the appellants is violative of principles of natural justice. We draw ....
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....94675781 was the person in Guwahati from whom they had to collect the gold which he had received from the person in Myanmar having the Mobile No. 0095979911028 and that the appellant Shri Gauttam Mour was also in touch with the said person in Guwahati and both the said appellants were in constant touch with each other during the material period of time as is clearly apparent from the said call detail. This analysis corroborates the admission of three of the appellants that they were dealing with the trading of gold smuggled from Myanmar. Hence the gold bars on which were not found any foreign markings also stands proved to be the smuggled ones. Otherwise also, it is an admission that most of the time, the smuggled gold used to be melted to deface the foreign origin. 6.13 The above discussion reveals that the department has produced enough of evidence to prove that the gold recovered from the appellants in concealed and undeclared form was nothing but the smuggled gold from Myanmar. The appellants could not produce any document of procession of such huge quantity of gold at the time of their interception at the airport. No cogent evidence could have been produced during the entir....