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2015 (10) TMI 417 - CESTAT NEW DELHI

2015 (10) TMI 417 - CESTAT NEW DELHI - 2015 (325) E.L.T. 609 (Tri. - Del.) - Smuggling of gold - Bonafide belief - whether Shri Om Prakash Verma has attempted to smuggle the gold to Nepal or not - Held that:- Case of the revenue is that they were having an intimation that some person will smuggle the gold through this check post in Nepal and they have called the pancha for the same. But in the cross examination of one of the pancha Shri Madan Tiwari.it is clear that when he was called at Khunwa .....

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den of proof has been discharged by the respondent. Now, it is for the revenue to prove that the gold in question was intended to export to Nepal by unfair means which revenue has failed to prove. - Moreover, when panchnama itself is doubtful, therefore, statements have no relevance. - If the statement is retracted after a gap of time the retraction is not admissible. In this case panchnama and statement are doubtful with the cogent evidence. Moreover, the statement has not been corroborated by .....

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pendent witness caught a person who was trying to cross the border with a fast pace. He was brought to the Customs office and was searched. During the search of the person two flat pieces of gold were recovered. On enquiry, the person disclosed his name as Om Prakash Verma, resident of Village Uska Raja, Post Office- Uska Bazar, Sidhartha Nagar. The officers called his local jeweler and got the gold pieces checked by him who found that the gold recovered from Shri Om Prakash Verma was of foreign .....

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akhan Verma after carrying it to Nepal. Shri Om Prakash Verma could not produce any valid document relating to export / import and sale of the recovered gold. Therefore, on the bonafide belief that recovered gold was attempted to be smuggled to Nepal in violation of Section 11' read with Foreign Trade (Development and Regulation) Act, 1992. Thereafter, the gold pieces and the pant were seized under section 110 of the Customs Act 1962. Shri Om Prakash Verma admitted in his statement that he w .....

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e is out of station in connection to the business work. Therefore, another summon was issue for 04.03.2012. On the said day Shri Anand Kumar alias Bablu appeared and handed over the documents and invoice pertaining to purchase of gold pieces. He stated that he is the owner of M/s. Abhishek Jewelers, Siddhartha Nagar. He also submitted that he purchased gold from registered / un-registered firm / individuals for making jewelry. At the same time he purchased gold / silver and some of the jewelry m .....

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the gold recovered from Shri Om Prakash Verma. He told that Shri Om Prakash Verma works on the basis of contract for carrying gold to artisans engaged in jewelry making. He admitted that gold recovered from Shri Om Prakash Verma on 14.02.2012 belongs to him and that this gold has been purchased from registered businessmen as he was having an order for delivering furnished jewelry to some local people and to complete his commitment he has given gold to Shri Om Prakash Verma to deliver it to loca .....

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red to these persons were totally incorrect. He further submits that gold is purchased from M/s. Krishna Saraswati Payal Chain Institute and M/s. Krishna Priya Jewelry House, Agra. The invoices were also produced. Thereafter, the artisans namely Shri Ved Prakash, Shri Santosh Kumar, Deepak Kumar Verma and Shri Rajkumar Verma were called who have admitted that they were preparing ornaments out of gold sent by Shri Anand Kumar alias Bablu over the years and since last one year Shri Om Prakash Verm .....

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ommissioner (A) set aside the adjudication order. Aggrieved from the said order revenue is before me. 3. Shri Davinder Singh Ld. AR, appeared and submits that the Ld. Commissioner (A) has held that the respondents have discharged their burden of ownership but he ignored that the case of the department was that recovered gold was being illegally exported to Nepal in contravention of provision of Customs Act 1962 read with relevant provisions of Foreign Trade Policy. He further submitted that Ld. .....

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of Jasmat Parshottam Ganesh Vs. State of Gujarat-1995 (76) ELT 548 (Guj) , Akai Impex Ltd. Vs. CCE Mumbai-2003 (156) ELT 700 (Tri-Mumbai) . He further relied on the decision in the case of S.G. Rajadhyakshya Vs. Leela Daulatram Uttamchandani-1991 (51) ELT 3 (Bombay) , Sidhharth Shankar Roy Vs. CCE Mumbai-2013 (291) ELT 244 (Tri-Mumbai) and Ashraf Puliyulla Parambil Vs. CC (Airport) Chennai-2007 (213) ELT 555 (Tri-Chennai) . He further submitted that Ld. Commissioner (A) has felt an error to rely .....

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sed for export under section 46 of the Act. Therefore, he submitted that impugned orders are set aside. Appeal filed by the Revenue are allowed. 4. On the other hand. Ld. Counsel appearing on behalf of the respondent submits that initially the burden of proof was on Shri Om Prakash Verma for procurement of gold and same has been discharged by Shri Anand Kumar alias Bablu by producing the invoices of gold purchase by him from M/s. Krishna Saraswati Payal Chain Institute and Krishna Priya Jewelry .....

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hat Shri Om Prakash Verma has made a statement on 14.02.2012 which has been affirmed by 15.02.2012 and same was retracted after a gap of time and same cannot be discarded. To support his contention Ld. AR has relied on various case laws but in the absence of any corroborative evidence of the statement recorded, the revenue's case does not stand in the light of the decision of The Puiiangoda Rubber Produce Co. Ltd. Vs. State of Kerala-1972 (4) SCC 683 , Vinod Solanki Vs. UOI-2009 (233) ELT 15 .....

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Om Prakash Verma has attempted to smuggle the gold to Nepal or not. Admittedly, in this case as per the facts of the case Shri Om Prakash Verma was apprehended before crossing to the Nepal border. Moreover, particularly in Khunwa which is well within India. Another fact is that the case of the revenue is that they were having an intimation that some person will smuggle the gold through this check post in Nepal and they have called the pancha for the same. But in the cross examination of one of .....

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ama Shri Om Prakash Verma was apprehended in the presence of the panchas. As the panchnama is doubtful, therefore, Ld. Commissioner (A) has created doubt on the truthfulness of the panchnama. Moreover, as per the panchnama it is coming out that Shri Om Prakash Verma had to deliver the gold to Shri Ram Lakhan Verma and Shri Prem Kumar in Nepal. But these two persons were not interrogated. Moreover, not made to the parties of the proceedings. Further, it is a fact that gold is of foreign origin an .....

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