TMI Blog2015 (10) TMI 2329X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be of foreign origin. seized gold bars do not have uniform weight/purity and appellant has shown purchase bills covering gold bars having assorted size, weight and purity and person who sold seized goods has also confirmed to have supplied them to appellant - Minor mismatching of difference in weight will not make bills as an after thought - Appeal allowed - Decided in favour of Appellant. - Customs Appeal Nos. C/75327,75516,75642 & 75643/2014 - ORDER NO : FO/A/75521-75524/2015 - Dated:- 21-8-2015 - Shri h.k. Thakur, Technical Member For the Petitioner : Sri R.K. Chowdhury, Advocate Sri B.N. Pal, Advocate For The Respondent : Sri S. P. Pal, Appraiser (A.R) ORDER Per SHRI H.K. THAKUR These appeals have been filed by the appellants against Order-in-Original No. 7/COMM/CUS/SLG/13-14 DATED-6/2/2014 passed by Commissioner of Customs, Central Excise Service Tax , Siliguri. Under this O-I-O dated--6/2/2014, Adjudicating Authority has confiscated 10 pcs. of Gold Bars, weighing 1746.580 gms., under Section 111 (b) and (d) and allowed redemption of the same under Section 125(1) of the Customs Act, 1962 by an option of ₹ 40 Lakh fine to the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the home of the owner with his father Nand Kishore Somani for Cooch Behar. Driver also corroborated the interception recovery of gold bars etc. mentioned in para 2 above. The officers of Customs seized 10 pcs. of assorted gold bars and the vehicle under the reasonable belief that the gold is of smuggled nature and occupants of the vehicle did not discharge the onus of its licit procurement as per the provisions of Section 123 of the Customs Act, 1962. Driver Shri Krishna Roy was arrested on 3/2/2014 and was granted bail on the same day by Chief Judicial Magistrate, Cooch Behar. In a statement dated 6/2/2012, Shri Nand Kishore Somani (recorded in the Hospital/Nursing Home) stated, inter alia, that the documents pertaining to the purchase of the gold from Kolkata were lying with him in some pocket and he was searching for the same in the Customs office on 2/2/12. That when he saw more officers coming the same created tension and he fell unconscious. It was also stated that the seized gold was purchased in the same form from M/s. Saraf Jewellers, Kolkata. Shri Nand Kishore Somani was arrested on 7/2/2012 and was also granted bail on the same day. Subsequent investigation made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of foreign origin. Secondly, it was also argued that weight of all the ten gold bars seized is not standard which is found in gold bars of foreign origin. It was strongly argued by the Learned Advocates that seized gold bars were not of smuggled nature and that present case is not covered by the provisions of Section 123 of the Customs Act, 1962 where onus is required to be discharged by the appellants. That the claimant had the purchase bills covering the seized gold which were present in the pocket of Shri Nand Kishore Somani at the time of interception. Learned advocates relied upon the case law of [Kapildeo Prasad Vs. CC (P) , Patna [2002 (02) LCX 0099 ] of this bench and made the bench go through paras 8,12 to 14 of this order to argue that even in case of seizure of foreign marked gold also it has been held that once bills are produced by the claimant , then such gold and vehicles are not liable to confiscation. It was also submitted that Shri Ajay Kr. Saraff has also stated to have received ₹ 39,15,982/- and only ₹ 9,30,292/- are remaining payment. 4. Shri S.P. Pal, Appraiser(AR) appearing on behalf of the Revenue argued that no document showing licit acquisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of gold is never below 99.99%. Even the findings and calculations made by the Adjudicating authority at para 38 39 of the Order-in-Original dated 6/2/14 will not help the case of the Revenue as to how seized goods will become of foreign origin when there are no foreign markings on them and there is no oral evidence also conveying the same of foreign origin. An information received in this case is only a hearsay not corroborated by any other documentary evidence. The seizure of gold bars was also not made in a Custom area or a vehicle coming from the side of Border with Bangladesh. In the light of the above factual matrix it has to be held that the seized goods cannot be considered to be of foreign origin. 6. Regarding applicability of Section 123 of the Customs Act, 1962 it is relevant to go through the provisions of this Section reproduced below. Section 123- Burden of proof in certain cases- 1 [(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- (a) In a case where such seizure is made from the possession of any person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to be T.T. Bars, the seized gold is biscuit. He has thus observed that such descriptive variation between the biscuits and the bars raises a reasonable doubt regarding the genuineness of the transaction. The appellants have contended that biscuits and the bars are synonymous terms used by the persons dealing in gold and are interchangeable T.T. Bars represent ten tola bars which are also referred to as biscuits. The Commissioner in his impugned Order has nowhere observed as to what is the difference between a biscuit and a bar. Similarly, as regards weight, I find that there is a variation of about 2 gms. in the weight of all the sixteen pieces of gold. The standard 10 tola bars weigh 116.640 gms, and as such, the total weight of 16 pieces of biscuits would come to 1866.240 gms, which is reflected in the sale voucher of M/s. Chauhan Zevares. Similarly, it is a matter of common knowledge that the standard purity of gold is 999.00. As such, as rightly contended by the learned consultant, the small variation in the weight or in the purity of gold is attributable to the human error and cannot be made the basis for rejecting the sale voucher of M/s. Chauhan Zevares who have admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ildeo Prasad, is established. As such, taking the said factor into accounts, I am of the view that the onus cast upon the appellants under the provisions of Section 123 stands fully discharged. The confiscation of the gold biscuits is not called for. Accordingly, I set aside the same. 15.In as much as the confiscation of the gold biscuits has been set aside, the confiscation of the truck is not called for. For the similar reasons, there is no warrant for imposition of penalties upon the various persons. The same is, accordingly, set aside. 7.1 In the light of the above relied upon case law in the case of foreign marked gold also it was held by this Bench that appellant has discharged the onus when the bills covering the foreign marked gold bars are furnished. In the present case the seized gold bars do not bear foreign markings, do not have uniform weight/purity and appellant has shown the purchase bills covering the said gold bars having assorted size, weight and purity. The person who sold the seized goods has also confirmed to have supplied the same to Shri Nand Kishore Somani. In his statement, reproduced in para (23) on page 16 of the Order-in-Original dated- 6/2/14, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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