TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 1170
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....A. 5705, while travelling back to Madhya Pradesh from Kalyani, Nadia by road. 3.1 Acting on the above intelligence, at about 06:00, p.m. on 11.04.2023, a team of DRI officers alongwith two independent witnesses started from the office of the DRI, Kolkata in two departmental vehicles and reached near Ishwar Gupta Bridge of Kalyani at about 08:15 p.m. The DRI officers then mounted surveillance at the Kalyani side entry point of Ishwar Gupta Bridge. 3.2 At about 09:00 p.m. the said vehicle which was a white coloured Mahindra XUV 300 Car bearing registration No. MP-21ZA-5705 was seen coming towards Ishwar Gupta Bridge from Kalyani side. As soon as it reached the entry point of Ishwar Gupta Bridge, the DRI officers immediately signaled to stop the vehicle. Four passengers including a young boy aged about 16 years, apart from the Driver, were found inside the vehicle. On enquiry the driver introduced himself as Shri Shankar Lal Patel, the other passengers introduced themselves as Shri Rakesh Pyasi, Shri Durgesh Kumar, Shri Lalit Kumar Soni and the young boy introduced himself as Shri Suryansh Soni. As the identities of Shri Rakesh Pyasi, Shri Durgesh Kumar, Shri Lalit Kumar Soni an....
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.... with black coloured carpet. Those black coloured carpets covering the foot rests of the rear seats and the front passenger seat of the vehicle were removed and all the three chambers made under the foot rests of the rear seats and the front passenger seat of the vehicle were opened. A black coloured cotton hand bag with white dots printed on it, was found concealed inside the chamber, made under the foot rest of the left rear seat of the vehicle. On opening the handbag 05 packages containing metallic objects, having considerable weight, wrapped with brown coloured adhesive tapes were found. All of such 05 packages, were cut opened and yellow coloured rectangular heavy metallic bars, believed to be gold of foreign origin were found from each of such package. In addition to that 01 (One) yellow coloured tiny metallic cut plece was also recovered from one of such package. In total 05 rectangular yellow coloured metallic bars and 01 (One) yellow coloured tiny metallic cut piece, all believed to be gold of foreign origin were recovered from the said black coloured cotton hand bag with white dots printed on it, which were at first wrapped with newspaper cutting and then further wrapped ....
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.... could produce any licit document in support of the legal possession/acquisition/ carrying/transporting dealing with the recovered yellow coloured rectangular metallic bars and cut-piece believed to be gold of foreign origin. 3.9 For preliminary identification purpose, the recovered 05 rectangular yellow coloured metallic bars, believed to be gold of foreign origin, were serially marked as 1/6,2/6,3/6 4/6,5/6 respectively and the recovered 01 (One) yellow coloured tiny metallic cut piece, believed to be gold of foreign origin was marked as 6/6. 3.10 Then the facsimile of all the recovered 05 rectangular yellow coloured metallic bars and 01 (One) yellow coloured tiny metallic cut piece, all believed to be gold of foreign origin were taken on white paper and the signatures Shri Rakesh Pyasi, Shri Durgesh Kumar, Shri Lalit Kumar Soni and the two independent witnesses were obtained on it. 3.11 For preliminary assaying and examination of the recovered goods, the service of Shri Sanjiv Kundu, a Govt. approved valuer was requisitioned by the DRI officers. Shri Sanjiv Kundu after detailed examination, in presence of the accused persons and two independent witnesses, certified in w....
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....t of the legal possession/acquisition/carrying/transportation of the recovered 05 rectangular yellow coloured metallic bars and 01 (One) yellow coloured tiny metallic cut piece, all believed to be gold of foreign origin. Considering the manner, in which the impugned goods. were being carried, by concealing inside the specially made chamber under the foot rest of the vehicle, and coupled with confessions of the apprehended persons to the effect that the impugned goods were gold of foreign origin and smuggled in nature, the DRI officers seized the recovered 05 rectangular yellow coloured metallic bars and 01 (One) yellow coloured tiny metallic cut piece, all believed to be gold of foreign origin under the provisions of Customs Act 1962, as the impugned gods were liable to confiscation under Section 111(b) and 111(d) of the Customs Act 1962. 3.15 The wrapping materials of the recovered goods, i.e. the torn newspapers and brown coloured adhesive tapes and the carrying material i.e. black coloured cotton hand bag with white dots printed on it, were also seized under the Customs Act 1962 as the same were liable to confiscation under Section 119 of the Customs Act 1962. 3.16 The whi....
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.... i.e. black coloured cotton hand bag with white dots printed on it, was kept in a big green coloured envelop and sealed with DRI Seal in presence and under the signatures of Shri Rakesh Pyasi, Shri Durgesh Kumar, Shri Lalit Kumar Soni, the DRI officer effecting the seizure and two independent witnesses. 3.22 The Tax Invoice having Order No.- OTF23A003814 dt. 28.11.2022, for the Mahindra XUV 300 vehicle, bearing registration No. MP-21ZA-5705, issued in the name of Shri Rakesh Kumar Soni and the copy of the Insurance paper for that vehicle having policy number 86170175 dt. 28.11.2022 as produced by Shri Rakesh Pyasi, Shri Durgesh Kumar and Shri Lalit Kumar Soni were also kept in one brown coloured envelop and sealed with DRI Seal in the presence of the intercepted persons and two independent witnesses. Signatures of Shri Rakesh Pyasi, Shri Durgesh Kumar, Shri Lalit Kumar Søni, two independent witnesses and the DRI officer were obtained on it. 3.23 The three mobile phones recovered from Shri Rakesh Pyasi, Shri Durgesh Kumar and Shri Lalit Kumar Soni were kept in one brown coloured envelop and sealed with DRI Seal in presence and under the signatures of Shri Rakesh Pyasi, ....
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....5 Kgs of gold in bullion form (altogether 6 pcs.) through 04(four) persons namely- 1) Shri Rakesh Pyasi, 2) Shri Durgesh Kumar, 3) Shri Lalit Kumar Soni, (4) Shri Suriyansh Soni along with driver Shri Sankar Patel by his own vehicle bearing No. MP-21ZA-5705 and left Katni for Kanchrapara on 09.04.2023: viii) The aforesaid persons reached Kolkata on 10.04.2023 and handed over the 5 Kgs gold in gold bullion to Shri Mahesh Patil as per verbal agreement. Due to EID & Ranjan festival, the Karigars were not turning up and he advised the aforesaid persons to return back with the goods so handed over to them and accordingly they started for Katni from Kanchrapara via Kalyani on 11.04.2023: ix) He came to learnt of DRI seizure of the gold and vehicle through the wife of Shri Rakesh Pyasi on 12.04.2023: x) All the goods so seized by the officers of DRI, Kolkata on 11.04.2023 are properly procured and accounted for and the same have been duly incorporated in all the relevant Books/Registers viz. Stock Registers/GSTR Returns, Balance Sheets etc. and supported by purchase/sale invoices, bills etc. xi) He also submitted GSTR Returns and all the related documen....
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....Mahesh Jagannath Patil as per verbal agreement. Due to EID and Ramjan Festival, the artisans were not turning up and he advised the said persons to return back with the gold so handed over to them and accordingly, they started for Katni from Kanchrapara via Kalyani on 11.04.2023. In fact, the Appellate Authority has failed to appreciate that the Call Details Record of the respondent, shown the constant communication between him and Shri Mahesh Jagannath Patil between 01.04.2023 to 12.04.2023. Therefore, it is difficult to believe that any person would ever sent his entire stock of gold valued at Rs.3.00 Crores (Approx.) for manufacturing juwellery to a person, who is located at a distance of around 1000 Kms and who is in constant touch through mobile with the person without asking even once about the availability of artisans at the shop where the jewellery would be manufactured. 4.2 It is further argued that the ld.Appellate Authority failed to appreciate that every person, including the staff of Shri Rakesh Kumar Soni, who joined the investigation conducted by DRI admitted in their statements recorded under Section 108 of the Customs Act, 1962, about the smuggled nature of the ....
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.... bearing registration No.MP-21ZA 5705 seized by DRI, Kolkata on 12.04.2023 and requested for provisional release of seized goods. The respondent vide letter dt. 31.05.2023 submitted that he sent 5 kg of gold bullion through his employee Shri Lalit Kumar Soni, Shri Rakesh Pyasi and Shri Durgesh Kumar from Katni to Kanchrapara to Shri Mahesh Jagannath Patil for making jewellery. The respondent submitted documents viz. GSTR-3B, Chartered Accountant's certificate certifying gold stock, purchase and sale ledger in support of his claim to discharge the onus to prove the possession of gold under section 123 of the Customs Act, 1962. The stock position of gold duly certified by Shri Shashank Premchand & Co., Chartered Accountant are as under:- S No. Firm Name M/s Pan & GST No. Gold Bullion as on 09.04.2023 Gold ornaments as on 09.04.2023 1. 2. 3. 4. 5. 1. Shree Amarnath Enterprises AWJPS1734L & 23AWJPS1734L1Z9 2180.631 gram 135.145 gram 2. Shree Venkatesh Abhushan CCMPS5014C & 23CCMPS5014C1ZV 2027.391....
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....vations made by the ld.Commissioner (Appeals) in the impugned order are affirmed. 12. For better appreciation, the said findings of the ld.Commissioner (Appeals) are reproduced below : "13. After going through the available records, I find that the gold bars were recovered from the appellants 1, 3 & 4. I find that in absence of possession of licit documents for the impugned gold bars, they were initially treated as smuggled under section 2(39) of the Customs Act 1962 and seized under section 110 of the Customs Act 1962 and the onus to prove that the goods are not smuggled was transferred to the appellants in terms of section 123 of the Customs Act' 62. Later, Appellant-2 made claim over the impugned gold and produced some documents for the same. Now the main point of consideration is that whether the impugned gold bars that are seized by the department, are smuggled and liable for confiscation, or the appellant-2 discharged his onus in term of section 123 by submitting documents 14. In this regard, I find that appellant-2 applied for release of the seized gold vide letter dated 31.05.2023 and claimed that he had sent 5 kg of gold bullion with appellant-1, 3....
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.....2023 for the firm M/s Nakul jewelers is submitted. It is found that the said gold purchases were done by the firm from i) M/s Ishan Gold, Indore ii) M/s Shree Amarnath Enterprises and for each purchase Tax Invoice has been produced by the appellant-2. 18. I find that appellant-2 has submitted in his grounds of appeal that out of his bonafide stock of 5012.669 grams of gold bullion (for M/s. Amarnath Enterprises 2180.61 gram, for M/s. Shree Venkatesh Abhushan 2027.391 gram and for M/s Nakul Jewellers 807.647 grams) as on 09.04.2023, he had given delivery of 4999.830 grams (approx. 5 kgs) of gold bar in 05 [five] pcs. Gold bar/Bullion and 01 [one] tiny cut piece through the aforesaid employees (herein appellants-1, 3 & 4), who boarded the Mahindra XUV 300 (Registration No. MP-21ZA-5705). Whereas, for the possession of the gold bars the Adjudicating Authority observed that "The claims of Shri Rakesh Kumar Soni (appellant-2) that the gold bullion was taken from the CA certified joint stock of the three firm viz. M/s Amarnath Enterprises, M/s Shree Venkatesh Abhushan, and M/s Nakul Jewellers was not tenable as the seized 05 nos. of defaced gold bar and 01 tiny cutpiec....
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.... ASHOK KUMAR AGARWAL, 2017 (348) E.L.T. 555 (Tri. Kolkata) wherein the Hon'ble tribunal observed that: "4. Respondent produced bill No. 527, dated 30-11-1997, issued by M/s Laljibhai Kanjibhai Soni of Ahmedabad, regarding purchase of foreign marked gold bars. Once respondent has produced such a bill then the burden under Section 123 of the Customs Act, 1962 stands discharged. It has also been observed by Hon'ble Calcutta High Court in second last Para of order dated 22-2-2016, quoted above, that department is required to do something more to demonstrate that the gold bars confiscated were not purchased by the respondent under the documents produced. Revenue is not able to demonstrate with documentary evidence that the seized gold bars were procured from any other source, except raising some suspicion. It is a well settled legal proposition that a case cannot be held to be established on the basis of assumptions, presumptions and surmises. In view of the above observations there is nothing wrong in the findings of first appellate authority, as contained in Para 10 of OIA dated 10-8-2001 and no interference is called for to set aside the same." 21. ....