TMI Blog2015 (9) TMI 1314X X X X Extracts X X X X X X X X Extracts X X X X ..... rship 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 bars to M/s Amrapali Industries Ltd – Source of seized gold biscuits were traced out to genuine purchase from authorised Bank –Under existing matrix, it cannot be said that Appellant failed to explain licit acquisition of seized gold bars, when he was regularly buying such gold bars in past – Appeal allowed – Decided in favour of appellant. - Appeal No.C/160/2007- SM - Order No. A/11159 / 2015 - Dated:- 5-8-2015 - Mr. H.K. Thakur, Member (Technical), J. For the Petitioner : Shri Mayur Shroff, Advocate 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 Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same at the threshold itself. That remand proceedings ordered by the Bench were only with respect to authenticity of Bill No.G/254/99 DT.08.04.1999 which has been confirmed by the supplier of gold bars M/s Amrapali Industries Ltd. It was the case of the learned Advocate that 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 cross examination of Shri S.T. Gurusahani, Superintendent (Investigating Officer), the report of Additional Commissioner etc to argue that 40 seized gold bars were purchased from M/s Amrapali Industries Ltd. That there is no other claimant of the said goods. 2.1 Learned Advocate also made the Bench go through the statement dt.26.05.1999 of Shri Deepakbhai P. Vyas, Proprietor of M/s Krupa Traders, in which he stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to be deliberated upon, as follows:- i) Whether Appellant Shri Pragnesh R. Choksi, Proprietor of M/s Shreya Traders is the owner of the seized goods? ii) Whether the seized goods were purchased by Shri Pragnesh R. Choksi from M/s Amrapali Industries Ltd under Bill No.G/254/99, dt.08.04.1999? iii) Whether penalty upon Shri Pragnesh R. Choksi can be imposed under Section 112(a) and 112 (b) of the Customs Act, 1962, in case he is not the owner of the seized goods? 6. Regarding issue at Para 5(i), Appellant 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras [(1999) 6 SCC 1]} 6.1 In view of the above case law, it has to be observed whether there were corroborations to the effect 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 Angadia also confirmed the source of seized gold to be M/s Krupa Traders. Both the brothers looking after the activities of M/s Krupa Traders denied ownership of seized gold bars but confirmed that Shri Pragnesh has delivered the seized gold to the representative of the Angadia. It is also on record that Appellant did file an anticipatory bail on 12.04.1999 before Session Courts fearing arrest. In view of the above corroboration, there was an apparent arrest threat to the Appellant for giving statement denying ownership. Apex Court in the case of Vinod Solanki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant of the seized goods. 7. The next issue mentioned at Para 5(ii) above is whether Bill No.G/25/1999, dt.08.04.1999 of M/s Amrapali Industries Ltd was the proof of purchase of gold bars by the Appellant. This document was not produced by the Appellant while recording his first statement dt.09.04.1999. Adjudicating authority in Paras 38, 39 40 of the OIO dt.12.01.2009 held that no payments were made by the Appellant to M/s Amrapali Industries Ltd as per statement of Shri Satish Amrutlal Patel, Accountant of M/s Amrapali Industries Ltd 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, M.D. of M/s Amrapali Industries Ltd, ₹ 19,69,800.00 is indicated as pending against M/s Shreya Traders as on 1999-2000. This amount cannot be pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported 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 the Tribunal ought not to have accepted the plea put forth by claimant Kapildeo Prasad that the gold biscuits belonged to him and were legally purchased. He points out that vouchers showed sale of T.T. Bars, whereas the seized gold was in the form of biscuits. Variation in weight and purity was also pointed out to show that the vouchers produced by claimant was not worthy of reliance. The Tribunal on appraisal of the materials came to the conclusion that in business world there is no distinction 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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