TMI Blog2009 (9) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ting gold bars absolutely to the Government by the Commissioner in view of the fact that the same were smuggled into India in contravention of the provisions of Customs Act, 1962 and therefore are liable to confiscation under Section 111(d), 111(e) and 111(i) read with Section 120(1) of Customs Act, 1962.Accordingly, penalties imposed upon the appellants under Section 112(b) of Customs Act, 1962 are reduced to the amounts. - C/52-55/2008 - A/2109-2112/2009-WZB/AHD - Dated:- 23-9-2009 - Shri B.S.V. Murthy, Member (T) S/Shri H.J. Shah and P.J. Bhatt, Advocates, for the Appellant. Shri Rajendra Nagar, SDR, for the Respondent. [Order].- Briefly stated the facts of the case are that 5 boxes containing 2514.750 gms of 16 to 18 carats purity smuggled gold valued at Rs.7,97,731/- were recovered by the Police Sub-Inspector Shri M.J. Parmar at Panchkoshi B-Division, Jamnagar from the goldsmiths of Jamnagar and Bhuj under Section 102 of the Criminal Procedure Code. The said action was taken on the basis of information received by the DSP, Jamnagar that two persons viz. Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar, both of Sikka, Jamnagar had smuggled the gold ornaments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... len from Malgoi (Dubai). 7. Shri Mukundlal Harilal Patadia admitted in his statement dt. 15-4-94 that he purchased the gold ornaments weighing 500gms from one Smt. Karimaben Suleman Sanghar and converted the same into gold bars. The same gold bars were seized by the police. 8. Shri Ishwarlal Narbheram Soni of Bhuj admitted in his statement dated 3-5-94 that he purchased gold ornaments weighing 1254.450gms from one Wagher having boyish look for an amount of Rs.4,84,500/-and he converted the same into gold bar weighing 1254.450gms which was seized by the Police on 5-4-94. 9. After issuance of show cause notice and adjudication process, the gold bars were absolutely confiscated and penalties were imposed on various persons. Against the order of Commissioner (Appeals), dated 31-12-97 who ordered absolute confiscation of the goods and imposing penalty, the appeal was filed before this Tribunal and the matter was remanded to Commissioner with following observations: "After hearing and perusal of the records, I find that since the lower authorities have failed to give their vital findings that the gold ornaments belong to the family members of the appellants and that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned advocate that there was only a minor difference between what the wife and daughter-in-law had stated earlier and what has been said in the affidavit. He also submits that there was only a minor variation in the affidavit and this should not be taken seriously. As regards Shri Mukundlal Harilal Patadia, it was submitted on behalf of the appellant that there were only minor discrepancies in the receipt produced and the fact remained that the gold was brought by the brother of the appellant from Kenya. The Commissioner has not accepted the same because of some minor difference in the weight etc. As regards Shri Hasmukhlal Hansraj Gusani also, the affidavit was submitted late, weight of the gold in the document produced did not tally. Further, he also submitted that there was only a minor difference in the weight. As regards Shri Chandrakant Harilal Varia, photo-copies of affidavit dt. 11-7-97, labour charge bill of Mumbai Refinery were produced. Thus, the learned advocate submits that the Commissioner has refused to accept the evidence and affidavits submitted by the appellant on the ground of minor variation and also on the ground that affidavits were submitted late. It is their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the weight of which was approximately 1260gms. However, in the affidavit filed by his wife and 2 daughters-in-law, it has been stated that they handed over the ornaments to Shri Ishwarlal Soni who melted the same, converted into gold bars which was handed over to the Police. Thus, the affidavits are totally contradictory to each other and the Commissioner has rightly rejected the same. The Commissioner has also noticed that the purchase bills submitted Shri Ishwarlal Soni shows the weight as 495.4gms and purity ranges from 19-24 Carets whereas the purity of gold bars seized by the Police from the possession of Shri Soni is 16-18 Carets. This again shows that what has been stated in the affidavit is not factually correct. Further, it is quite well known that in India gold ornaments are invariably of above 20 carats (claimed to be 22+), whereas 18 carats gold ornaments are popular abroad. There is no explanation as to how the purity of the goods came down from 19-24 Carats to 16-18 Carats. Therefore, the affidavit and bills produced by Shri Ishwarlal Soni are of no help and I agree with the conclusion of Commissioner regarding these evidences. 15. As regards evidences produced by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Mumbai Refinery and he has produced a bill dated 1-9-94 in this connection. Surprisingly, Mumbai Refinery has returned 301.5gms of gold after deducting 1.5gms as loss even though Shri Gusani claimed to have sent only 291gms of gold, no explanation was put forth by the learned advocate, even though several queries were raised to the advocate in this regard. Further, the refinery has also not indicated the weight and the purity received. Thus, Shri Gusani has not been able to account for the gold and the documents and affidavit produced by him are of no help to him. 18. As regards Shri Varia, he has not been able to show any source for the gold recovered from him. 19. While remanding the matter, Tribunal had also ordered that the Commissioner should also consider several decisions cited by the appellant before Tribunal. I find that each and every case cited by the learned advocate before the Tribunal has been discussed by the Commissioner and find that he has clearly dealt with each and every decision cited and either found them not comparable on facts or not applicable. The main issue was whether Section 123 of the Customs Act, 1962 is applicable and for this purpose, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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