TMI Blog2010 (4) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... l for any interference. The appeal is, therefore, rejected. - C/752/2005-SM(BR) - 510/2010-SM(BR)(PB), - Dated:- 28-4-2010 - Shri M. Veeraiyan, Member (T) REPRESENTED BY: Shri A.K. Jain, Advocate, for the Appellant. <?xml:namespace prefix = st2 /> Shri I. Baig, SDR, for the Respondent. [Order (Oral)]. - This is an appeal against the order of the Commissioner (Appeals) No. 276/CE/APPL/KNP dated 3-6-05. The matter is before the Tribunal for the second time having been remanded to the adjudicating authority vide Final Order Nos. A/960-61/98-NB dated 28-10-98. 2. Heard both sides extensively. 3.1 The relevant facts, in brief, are that the Central Excise Officers of Agra Division visited the residential pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken on 10-8-94 and 11-8-94 and he was also arrested. He, in his statements admitted to the smuggled nature of the gold. The statements of Shri Faiyaz Ahmed stand retracted, according to the learned Advocate, by way of affidavit addressed to the Collector, Central Excise, Kanpur. A statement of Shri Zaki lshrati was taken on 1-12-94 in which he disowned knowledge about 16 pieces of gold recovered from the Garden. 3.4 On the basis of show cause notice, in pursuance of the direction for tie novo adjudication, the original authority vide impugned order dated 16-12-04 confiscated the gold absolutely and he also imposed a penalty of Rs. 50,000/- on Shri Faiyaz Ahmed and a penalty of Rs. 50,000/- on Shri Sayed Zaki Ishrati. On appeal by Shri Z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 811 to submit that touchstone method is not a foolproof method for ascertaining the purity of the gold and therefore, the reliance placed by the authorities below on the certificate of the assayer to come to a conclusion that the gold was of foreign origin is erroneous. 4.3 He also relies on the decision of the Hon'ble Supreme Court in the case of BPL Pharmaceuticals Ltd. v. C.C.E,, Vadodara - 1995 (77) E.L.T. 485 (S.C.) to submit that existence of foreign marks does not necessarily imply that the goods are of foreign origin. 4.4 He also submits that during the relevant period, the gold was not in any restricted list of imports. He also submits that the appellant was running the factory manufacturing liquid gold. 4.5 The Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the spot. The value of any commodity naturally depends upon the purity/condition of the goods. As a Government approved valuer, it cannot be said that he did not take into account the purity of gold while giving his opinion on value. At any rate, it is not merely the assayer's report which was relied upon to conclude that the gold biscuits were of foreign origin. 5.3 Regarding the non-availability of the signature of the officer in the statement given by Shri Zaki Ishrati, he submits that the same does not in any way diminish the validity of the statement. The statement was in his own hand writing and the same has been given before the officer and at any rate, the same were handed over to the officer and therefore, the voluntary natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under reasonable belief that they were smuggled in nature, the burden was squarely on the appellant to prove that they were licitly procured by them. No such reliable evidence has been let in. 6.2 I am unable to rely on the views expressed in the letters given in 2004 by Swarnkar Sangh, Shree Sarafa Committee and Agra Jewellers Association. The submissions that the gold carrying foreign mark need not be necessarily of foreign origin may be theoretically possible if some forgery was done. How ever, in the present case, the authorities below came to the conclusion that the seized gold were of foreign origin on the ground that the appellant has failed to discharge the burden of proof as contemplated under Section 123 of the Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement of Shri Faiyaz Ahmed is justified. The judgement relied by the learned Advocate in this regard are not relevant to the facts of this case. 6.4 As regards the statement of Shri Zaki Ishrati, it is not disputed by the Department that the officer recording the statement has not appended his signature in the statement. Under these circumstances, the claim of the learned Advocate for the appellant placing reliance on several judgements that the statement cannot be treated as statement under Section 108 is to be accepted. However, the fact remains that the statement which can be considered as letter or a communication from Shri Zaki Ishrati was made in his own hand and apparently delivered to the investing officer. If it is taken as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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