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2015 (10) TMI 2132 - CESTAT KOLKATA

2015 (10) TMI 2132 - CESTAT KOLKATA - 2015 (325) E.L.T. 781 (Tri. - Kolkata) - Smuggling of goods or not - foreign marked gold Alleged that goods were seized from waste paper box into which Shri Mahendra Bahadur (employee of Appellant) has hastly dropped the packet containing gold bars Appellant contends that gold biscuits have been procured by him legally from M/s. Anand Sales Pvt. Ltd. - Confiscation of goods under Section 111(b) and (d) and penalties imposed thereafter under Section 112 .....

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alties imposed Appeal disposed in favour of Appellant with consequential relief. - Customs Appeal Nos. C/07/2007 & C/10/2007 - FINAL ORDER NOS. A/75482-75483/2015 - Dated:- 21-8-2015 - H K Thakur,J. For The Appellant : Sri K P Dey, Adv For The Respondent : B N Chattopadhyay, Consultant Per: H K Thakur: These appeals have been filed by the appellants against Order-in-Original No. 12/CUS/CC (P)/WB/2006 dated-7/11/2006 passed by C.C. (P), Kolkata. Under this Order-in-Original dated-7/11/2006 tw .....

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mp; Shri B.N. Chattopadhyay (Consultant) appeared for Shri Rajendra Kumar Damani. Shri K.P. Dey (Advocate) argued that 22 pcs. of gold biscuits, having inscription of PMPO SUISSE 10 TOLAS -999.0 on two pcs. & CREDIT SUISS 999.0 TOLAS on the rest, were seized by the officers of Customs during the search of the business premises of Rajendra Kumar Damani on 14/2/2001 during which brother of Shri R.K. Damani, Shri Bimal Kumar Damani was also present alongwith another person Shri Mahendra Bahadur .....

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e Damani brothers have been shown as witnesses in the panchnama. That Shri Mahendra Bahadur has confessed to have collected the said gold biscuits from a person at Sealdah as per the instructions of his employer Shri Rajendra Kumar Damani. Shri R.K. Damani also confirmed in his statement dt. 14/02/2001 that he has sent his two employees Shri Mahendra Bahadur &Bhola Rai to Sealdah station to receive 22 pcs. of gold biscuits from one person sent by Shri Jagdish Agarwal of Gangarampur. That Shr .....

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recorded by Customs Officers on 14/02/2001 was under pressure & coercion. That statement of Shri Nand Kishore Modi of M/s. Anand Sales Pvt. Ltd. was also recorded on 19/3/2001 wherein he confirmed to have supplied 22 foreign marked gold biscuits under Bill No. G/0618 /2000-01 dated-9/2/2001 & G/0615/2000-2001 dated-9/2/2001. Shri N.K. Modi also stated that the said gold bars were purchased by him from ABN Amro bank, Russel Street Branch , Kolkata under delivery Challan No. CAL-2001/C.L. .....

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gled nature has not been discharged by the department under Section 123 of the Customs Act, 1962. It was also argued by the Ld. Advocate that following case laws have also decided the same issue in favour of other appellants: (i) Samir Kr. Roy Vs. CCP (Calcutta) reported in 2001 (07) LCX 0153 (ii) Giridhari Dubey Vs. CCP, Kolkata - 2001 (11) LCX 0215) (iii) Kapildeo Prasad Vs. C.C. (P), Patna- 2002 (02) LCX 0099 (iv) Mohd. Aslam Vs. C.C., New Delhi- 1999 (04) LCX 0198) 3. Shri S.P. Pal (Appraise .....

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ther the foreign marked gold seized by the officers of Customs on 14/2/2001 was smuggled gold and whether the purchase bills for gold biscuits produced by the appellant Shri Rajendra Kumar Damani were covering the seized gold biscuits . It is the case of the Revenue that on the date of seizure neither Shri Mahendra Bahadur nor Shri R.K. Damani could produce any documents regarding licit acquisition of seized gold biscuits. By a letter dated 19/2/2001, Shri R.K. Damani produced copies of the purc .....

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o investigation conducted and evidence has been brought on record to indicate whether any efforts were made to trace out Shri Jagadish Agarwal of Gangarampur from whom Shri R.K. Damani has stated to have purchased smuggled gold biscuits on past several occasions also. Conflicting facts regarding place of recovery of gold biscuits, whether from the pocket of Shri Mahendra Bahadur or from the waste paper box, are coming out from the records of the case. It is also not clear as to why Shri Mahendra .....

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zed gold biscuits were seized in a Customs area or was coming from the side of an international border with India. In the case of Samir Kumar Roy Vs. CC(P), Calcutta [2001 (07) LCX 153 appeal of the appellant under similar factw was allowed . Following paras of this case law are relevant and are reproduced below: "3.1 On 16/101995 at about 15.30 hrs., on interception and search of one Maruti Car, the Customs Officers found 16 pieces of gold biscuits and 4 pieces of gold strips from the unde .....

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e was go give the said 6 pcs. of gold biscuits to Shri Samir Kumar Ray. As the appellant could not produce any documentary evidence, showing legal acquisition of the gold in question, the same alongwithMaruti Car were seized. The Indian currency was also seized by the officers on a reasonable belief that the same was the sale-proceeds of the smuggled goods. However, the said currency stands released by the impugned order of the Commissioner." 3.2 During interrogation Shri Ray gave self-incr .....

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ced one Bill No. G/118, dated 12/10/1995. Enquiries were conducted by the Customs and statement of Shri Vinay Kumar C. Zaveri, In-charge of M/s. Mansukhlal T. Bavishi was recorded on various dates. He admitted having sold 21 pcs. of gold biscuits of foreign markings to Shri Samir Kumar Ray of M/s. Bijay Jewellers, Calcutta under Bill No. G/118, dated-12/101995. He further revealed that these 21 pcs. of gold biscuits were purchased from one NRI person named Ismail who imported the same under bagg .....

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id appellant has taken a definite stand before the adjudicating authority that the gold in question was purchased by him through Mansukhlal T. Bavishi and Shri Binay C. Zaveri the representative of the said M/s. Mansukhlal T. Bavishi have clearly deposed in his statement before the investigating officer that the gold in question was sold by them to Shri Samir Kumar Ray, Calcutta at Mumbai (sic) and Shri Ray has signed the purchase bill at Mumbai and took the delivery of the same personally. They .....

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he baggage receipt. On the other hand we find that the appellant as also Shri Mansukhlal T. Bavishi of Mumbai have placed on record sufficient evidence showing sale of the gold biscuits in question. The residential address of the proprietor of M/s. Pankaj Jewellers was disclosed by Shri Mansukhlal T. Bavishi in their reply to the show cause notice. There is nothing in the impugned order to reflect upon efforts made by the Revenue to contact the proprietor of M/s. Pankaj Jewellers or to verify th .....

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he appellant was under no legal obligation to maintain any records and secondly, the appellants have explained that Shri Samir Kumar Ray landed in Calcutta on 14/10/1995 which was Saturday and 15/10/1995 was Sunday and thereafter the gold was seized in the morning hour on 16/10/1995, thus giving no opportunity to the appellant to record the same in his business records. We also take note that Revenue has nowhere alleged that the baggage receipt produced by the appellant is not genuine. The fact .....

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s, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a flood of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal req .....

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ansukhlal T. Bavishi having admitted to have sold the gold in question to the appellant by itself is sufficient to show the legal acquisition of the gold by Shri Ray. As such we are of the view that the onus placed upon the appellant under provisions of Section 123 is discharged to the requisite extent. Accordingly, we set aside the confiscation of 21 pcs. of gold biscuits belonging to Shri Samir Kumar Ray and confiscation of his maruti car and imposition of personal penalty upon him. For the sa .....

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