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TMI Blog2015 (10) TMI 2329X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption to the owner Shri Rakesh Kumar Somani on payment of Rs. 70,000/- as redemption fine. Under this order penalties of Rs. 5.00 Lakh on Shri Nand Kishore Somani, Rs. 1.00 Lakh each on Shri Rakesh Kumar Somani & Shri Manoj Gattani & Rs. 50,000/- on Shri Krishna Roy (Driver) were also imposed under Section 112 (b) of the Customs Act, 1962. 2. Brief facts of the case, as contained in the Order-in-Original dated 6/2/2014, are that DRI received an information that about 1.5 Kgs. Of gold, believed to be of foreign origin, was to be transported in one Tata Indica Vehicle bearing Registration No. WB-74M-5809. It was also in the information that gold was believed to be from Bangladesh and that the same was subjected to some re-treatment for selling to different Jewellery Shops in and around Cooch Behar. On the basis of the above information the said vehicle was intercepted on 2/2/2012 by the officers of Cooch Behar Customs P.O. near Ghoogomali Area and two occupants (including a driver) were found in the vehicle. Both the occupants alongwith the vehicle were brought to Cooch Behar Customs office premises. When the said vehicle was being checked in the parking lot of the office prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Shri Ajay Kumar Saraf, proprietor of M/s. Saraf Jewellers, Kolkata in his statement confirmed the supply of gold bars to Shri Nand Kishore Somani under Bill No. 97 dated-3/1/2012, 105 dated-9/1/2012, 110 dated-17/1/2012, 112 dated-19/1/2012 & 116 dated-24/1/2012. He also submitted certain photo copies of Purchase Bills of Jewellery & bank statements. 2.3 Shri Nand Kishore Sumani in his further statement dated-27/2/2012 inter alia, accepted the ownership of the seized goods believed to be gold and that the same were purchased on different dates from M/s. Saraff Jewellers , Kolkata. He denied the fact that during interception and checking he tried to flee. That on the contrary he was intercepted at hogohmali at about 5.30 p.m. and brought to Customs office, Cooch Behar and that the gold was recovered from the dash board of the vehicle. That the seized vehicle belonged to his son Shri Prakash Kumar Somani. It was also stated that he made a payment of Rs. 7,86,195/-for the said gold and remaining amount was on credit due to good relation of Shri Manoj Gathani of Kolkata (his son in law) with M/s. Shroff Jewellers . That the amount of Rs. 10.00 Lakhs in his ICICI account was due to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant. Ld. A.R. made the bench go through para VI, on page 37 of the Order-in-Original dated-6/2/2014, to argue that statements of some persons in favour of the appellants cannot prevail over the test reports of the chemical examiner who has determined the purity of the gold bars . He also made the bench go through the findings of Adjudicating authority on page 39 to argue that said quantity and purity of seized goods cannot be produced from the Jewellery, purchased by M/s. Saraff Jewellers, Kolkata . Learned A.R., therefore, strongly defended the order passed by the Adjudicating authority. 5. Heard both sides and perused the case records. The first issue required to be decided in these proceedings is whether 10 gold bars (1746.580 gms.) seized by the officers on 2/2/12 are of foreign origin. The said 10 gold bars of different size and weight were seized on a reasonable belief of being smuggled as per the information of DRI and that the same is brought from Bangladesh and subjected to some retreatment. It is observed from the weighment sheet of seized 10 gold bars that the weight of these gold bars was ranging from 52.470 gms. to 344.720 gms. None of the two seized gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; (b) In any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold, 2[and manufactures thereof,] watches, and any other class of goods which the Central Government may by notification 3 in the Official Gazette specify." 7. It is true that as per the above provisions of S4ection 123 of the Customs Act, 1962 it is not required that gold should contain foreign markings and even gold in primary form or jewellary could also be covered as per the language of the provision. But whether onus of Indian origin on any primary gold or jewellery bearer is cast upon the person in possession of such gold. It may be appreciated that when the provisions of Section 123 of the Customs Act, 1962 were enacted the Gold Control Act was also in operation and gold was considered to be a very sensitive commodity. There was subsequent liberalisation in import policy with respect to gold and even foreign marked gold was allowed to be imported through baggage & through Banks on fulfilling certain conditions. On licit import these foreign marked gold bars can be freely bought & sold in India. However, if any person is found to carry a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. Naturally a person who has sold the gold, cannot confirm whether the gold seized by the Customs Officers from that person, is the same gold or not. But the said statement made by M/s. Chauhan Zevares further confirms that the sixteen pieces of gold were, in any case, purchased by Shri Kapildeo Prasad from the said M/s. Chauhan Zevares Pvt. Ltd. 13.The Tribunal in the case of S.K. Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) E.L.T. 415 (Tri. - Mum.) observed as under :- Thus, 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 requirement for the buyers and sellers of gold to maintain any register nor is there any requirement to issue invoices under any Central Act. 14.In the case of Sri Samir Kumar Roy & Oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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