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2015 (9) TMI 1314 - CESTAT AHMEDABAD

2015 (9) TMI 1314 - CESTAT AHMEDABAD - 2015 (330) E.L.T. 542 (Tri. - Ahmd.) - Ownership of Seized goods – Legitimate transaction – appellant argued that seized goods were properly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of the Customs Act, 1962 - Appellant alongwith on other was intercepted and 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons – Whether seized goods were purchased and/or ow .....

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ellant –Employee of Appellant confirmed to have prepared paper found alongwith seized packet –All others who were investigated denied ownership of seized gold bars – Thus, Appellant was rightful owner/claimant of seized goods.

Adjudicating authority held that no payments were made by Appellant for seized gold bars – Appellant brought on record letter under which order was placed for 3000 gold bars before branch manager of Allahabad bank – As per cross-examination Bank has sold gold ba .....

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cate For the Respondent: Shri G. Jha, Authorised Representative ORDER Per: H.K. Thakur This appeal has been filed by the Appellant against OIO No.1/COMMR./OA/2007, dt.01.10.2009, passed by Commissioner of Customs, Ahmedabad as the Original Adjudicating Authority. This OIO dt.12.01.2009, has been passed by the Adjudicating authority, as per the specific remand directions of CESTAT under Order No.A/592-596/WZB/2006/CSTB/C II, dt.30.06.2006, under which 40 TT Gold Bars (valued at ₹ 19,70,000. .....

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ormation when they were about to board the train for Mumbai. That 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons. That out of total foreign marked gold biscuits, 40 TT gold bars of PAMP SUISEE markings were found to be accompanied by a paper on which M/s Sreya Traders/M/s Krupa Traders M/s Krupa Ornaments was written. Statement of the intercepted person, who was an employee of M/s Vishnubhai Ambalal & Co, was recorded to the effect that the .....

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d, was neither written by him nor signed by him. Later by a letter dt.12.04.1999, Shri Pragnesh R. Choksi retracted the statement dt.09.04.1999 and claimed ownership of the 40 seized gold bars and contended that the same were purchased by him from M/s Amrapali Industries Ltd vide Bill No.G/254/99, dt.08.04.199. That Adjudicating authority under his first OIO No.30/COMMR/2000, dt.29.12.2000 did not accept the claim of the Appellant and absolutely confiscated the seized gold bars.That this Bench v .....

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Adjudicating authority got the matter investigated from an Additional Commissioner and the facts which came out during investigation confirmed the purchase of seized gold bars by the Appellant but Adjudicating authority by improper construction of facts arrived at a wrong conclusion that the bill of M/s Amrapali Industries Ltd is created only to cover the seized gold bars. Learned Advocate made the Bench go through the statements of various persons of M/s Amrapali Industries Ltd, recorded the cr .....

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ng to do with the seized 40 TT gold bars. He also made the Bench go through cross examination of Shri S.T. Gurusahani held on 16.06.2000 to bring home the point that M/s Amrapali Industries Ltd in fact purchased gold bars of the same mark from a recognized bank as per their order dt.08.04.1999. 2.2 Learned Advocate relied upon the following case laws to argue that the seized goods were properly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of t .....

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o argue that confession given is an admissible evidence. Learned A.R. made the Bench go through Para 3 of this case law. He also relied upon the following case laws of Apex Court to argue that an admission made by the Appellant need not be proved as there is no claim of first statement being recorded under coercion or duress:- i)CCE Madras Vs Systems & Components Pvt. Ltd[2004 (165) ELT 136 (S.C.)] ii) CCE Mumbai Vs M/s Kalvert Foods India Pvt. Ltd[2001-TIOL-76-SC-CX] That Adjudicating autho .....

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nt evidences. He made the Bench go through Paras 22, 34, 35 & 37 of this case law to argue that in the present proceedings there are ample corroborative evidences to show that retraction was correct especially in view of the bill of M/s Amrapali Industries Ltd produced by the Appellant and the verification done from the Bank read with cross examination of the investigating officer. 5. Heard both sides and perused the case records. There are mainly three issues involved in these proceedings t .....

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pellant in the very first statement dt.09.04.1999 disowned the 40 gold bars seized on 08.04.1999 by the Customs officers. However, in this statement dt.09.04.1999, Shri Pragnesh R. Choksi also stated, inter alia, that he do purchase gold/silver bars from M/s Amrapali Industries Ltd, Vishal James and M/s Krupa Traders, all of Manek Chowk, Ahmedabad. It was also stated by him that all transactions of his firm are looked after by two brothers Dilip P. Vyas and Shri Deepak P. Vyas of M/s Krupa Trade .....

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18.06.1999 confirmed to be the creator of paper on which name and address of M/s Shreya Traders was printed, as per the instructions of Shri Pragnesh and that he signed as Pragnesh on behalf of Shri Pragneshbhai. It is observed from the case records that on 12.04.1999, Appellant claimed the ownership of the seized goods and also filed anticipatory bail application before Court of City & Sessions Judge, Ahmedabad. It is the case of Revenue that the retraction made by the Appellant is not acce .....

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specifically ruled that evidence brought out by confession if retracted must be corroborated by other independent and cogent evidences. Following were the observations of Supreme Court in this regard:- 22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decision .....

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ct that retraction of Shri Pragnesh R. Choksi was justified. It is observed from the case records that there was a paper bearing Appellants name alongwith the seized goods regarding the firm M/s Shreya Traders. On that basis only, the Customs officers reached the Appellant and recorded his statement. In his very first statement, Shri Pragnesh though denied ownership of seized gold but did state that he is buying and selling gold/silver from M/s Amrapali Industries Ltd. Statement of employees of .....

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atement denying ownership. Apex Court in the case of Vinod Solanki Vs UoI (supra) on Para 35 & 35 held as follows:- 34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose o .....

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equirement is that it may appear to the court as such. 35. In the instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a q .....

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urt, there was corroboration and justification for retraction on the part of the Appellant. Name of the Appellant was existing on the paper accompanying the gold bars seized. Employee of the Appellant confirmed to have prepared the paper found alongwith the seized packet. All others who were investigated have denied the ownership and have not claimed the seized gold bars afterwards. Accordingly, it is held that Appellant was the rightful owner/claimant of the seized goods. 7. The next issue ment .....

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and that amount of ₹ 19,70,000.00 has not been reflected in their balance sheet. It is Revenues case that entry of ₹ 19,70,000.00 in the books of account could be with respect to Bill No.216, dt.07.04.1999. It is observed from report dt.27.10.2006 of Additional Commissioner submitted to the Adjudicating authority that Appellant was regularly purchasing gold from M/s Amrapali Industries Ltd and making payments in cheque or cash. As per the statement of Shri Yashwant Amrutlal Thakkar, .....

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r 3000 gold bars before Branch Manager, Allahabad Bank, S.P. Nagar, Ahmedabad, which were received by the authorised person of M/s Amrapali Industries Ltd. As per the cross-examination dt.16.06.2000 of Shri S.T. Gurusahani, Superintendent, it has come on record that Bank has sold the gold bars to M/s Amrapali Industries Ltd. The source of the seized gold biscuits has been traced out to a genuine purchase from an authorised Bank. The same has also been accounted for in the records maintained by M .....

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y 3 cheques. The Show Cause Notice makes the claim that these cheques were not debited in the account of the appellants. Shri Nankani submits that at that time also one cheque was realised and later the total realisation was made. The Show Cause Notice in para 8 admits to one of the 3 cheques being realised. The Show Cause Notice also alleges that such long credit to a buyer is questionable. While this observation might have had merit in the earlier days when there was no import of gold or where .....

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e receipts under which Bhulchandani had imported the gold was not a genuine baggage receipt. Bhulchandani has not been made a noticee to the Show Cause Notice. Therefore, it has to be held that by proving lawful acquisition, the burden cast upon the appellants has been discharged. 7.2 Similarly, in the case of CC Vs Kapildeo Prasad [2011 (272) ELT 31 (Pat), Hon'ble Patna High Court held in Para 7 as follows:- 7. While assailing the order of the Tribunal, Mr. Rakesh Kumar Singh contends that .....

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between biscuits and bars and further discrepancies of 2 grams in 16 pieces of biscuits shall not make the vouchers to be unworthy of reliance. 7.3 In the case of Motilal @ Mohanlal Khatri Vs CC Jaipur [2005 (192) ELT 1119 (Tri-Del)], CESTAT Delhi in Para 3 held as follows:- 3. both sides and gone through the record. I have heard From the record, it is evident that Shri Lalit Khatri, appellant, at the time of his apprehension did not admit of having smuggled the gold bars seized from him from a .....

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