TMI Blog2007 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Mark of gold Quan- tity Nature of possession of gold bars 1. Sh. Shailesh Ratilal Patel, Proprietor of M/s. S.K. Jewellers ARGOR SUISSE 100 Kept in 4 plastic packets each of 25 bars 2. Sh. Vijaybhai CREDIT 90 A small Dashrathlal Patel, Proprietor of M/s. Paras Bullion (Respondent herein) HERAEUS green bag carried by him 3. Smt. Rasilaben Rathod ARGOR HERAEUS 95 Under her attire tied with a waist belt 4. Shri Jaswantbhai K. ARGOR 95 Hidden in Patel HERAEUS PAMP SUISSE JOHNSON 09 sole of the shoes MATHEY 09 5. Bhikhabhai T.K. Patel CREDIT SUISSE 55 Hidden in sole of the Shoes 6. Arvindbhai K.K. Patel ARGOR HERAEUS 55 Hidden in sole of the shoes 7. Shri Nandubhai Brijlal Soni UBS 51 Hidden in sole of the shoes 8. Nathubhai @ Nitinbhai B. Patel CREDIT SUISSE 55 Hidden in sole of the shoes 3.Out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed that he had purchased 300 gold bars from Paras Bullion but no bill had been issued therefor nor any payment has been made by him. On the said date, statement of Naresh Chokshi was also recorded, wherein, allegedly, he did not make any statement to the effect that he had sold any gold bar of UBS mark to Paras Bullion. The second statement of Shailesh Patel was recorded on 29-10-1999, wherein he reiterated his earlier statement, stating : "...On being further questioned, I have to state that the details of the receipt/purchase of the said foreign mark gold biscuits are narrated in the prior statement given by me..." 5.In his statement recorded on 28-10-1999, Vijay Dasharath Patel had made a statement that details of purchases of the gold biscuits could be furnished only upon perusal of his books of accounts. 6.We need not refer to the other statements made by other persons recorded by the Customs Officers on that date, being not relevant for the purpose of this case. We may, however, notice that proceedees retracted from their statements on 11-11-1999, alleging that he had the requisite documents to support their contentions that gold seized were not smuggled ones. 7.How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove his possession of 200 gold biscuits cannot be relied upon at all. The gold biscuits seized are not of the same brand for which the bills have been produced. • On 24-10-1999, Vijay Dasharath Patel has stated that he had purchased 200 pieces of foreign mark gold bars of "CREDIT SUISSEE" mark from M/s Riddi Siddi Bullion on 23-10-1999. However, from the statement of Shri Dinesh authorised signatory of M/s Riddi Siddi Bullion did not mention whether the gold biscuits delivered to Mr. Vijay Dasharath Patel were of CREDIT SUISSEE mark. It was also observed that the alleged Bill No. 294/GL/99/2000 dated 23-10-1999 also does not show the markings of the brand name of the gold biscuits. • Statement of Ashwinbhai Patel is relied upon to show that Bill No. 11931 was a complete after thought and it had been in fact prepared on 24-10-1999. Ashwinbhai Patel had stated that his maternal nephew Shri Devang Patel had phoned him on 24-10-1999 and informed him about the recovery of the gold biscuits by police and on being called by him, he had gone to the residence of Shri Vijay Dasharath Patel on 24-10-1999 and he had prepared the Bill No. 11931. • Both Vijay Dashara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscuits. • No man of ordinary prudence will transport legally imported foreign mark gold biscuits in the way notices have been found to be doing. The facts and circumstances of the recovery of the gold bars by way of concealment in shoes and other body parts of the notice is a positive circumstancial evidence to suggest that the gold was illegally acquired and hence it was transported in a surreptitious and clandestine manner more often adopted by smugglers. • Satishbhai Patel, who is the accountant of M/s S.K. Jewellers, was also liable as he had abetted Shailesh Patel in contravention of the various provisions of the Customs Act. • All the carriers of gold bars had not demanded any document in support of the illicit import/acquisition of the gold biscuits received by them from Satish Patel and Vijay Dasharath Patel and as such have abetted Shailesh Patel and Vijay Dasharath Patel in committing contravention of law. • Accordingly, it was directed that the 500 gold bars weighing 58.320 Kgs. valued at Rs. 2,70,00,000/- be confiscated under Section 111(D) of the Customs Act. Penalties were also imposed on the notices." 10.Appeals filed by Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chokshi and Shri Yeshwant A. Thakkar of Amrapali Ltd., not only admitted having sold the gold to the appellants but also provided documentary evidence of having purchased the gold from Banks. By not issuing any Show Cause Notice to those persons, we find that the Revenue agrees and were fully satisfied that the gold was legally acquired by them and supplied to the appellants. **** • Nandubhai Soni, one of the carriers was let off although he was similarly placed as other carriers. • Transportation of gold in shoes appears to be a normal fashion of transporting gold bars, by carriers in the bullion market, irrespective of the fact whether they have bills or vouchers. • Satishbhai Patel, the Accountant of S.K. Jewellers cannot be said to have abetted Shaileshbhai Patel by preparing ante dated bills. The proven practice of sales in this market would led us to find nothing amiss in invoices being written/prepared with or without brand marks. • ABN AMRO Bank letter dated 12-11-1999 confirms that the gold was legally imported. • Although the documents do not show that the gold bars were of a particular origin, there is no statutory requirement wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30E of the Customs Act, as it stood then, provided for an appeal from an order passed in appeal by the Appellate Tribunal, save and except those specifically mentioned therein, only in the event a satisfaction is arrived at by the High Court that the same involves a substantial question of law. 21.Before the High Court, as also before us, several questions of law have been raised. We, however, in view of the order proposed to be passed, need not deal with all of them in details. 22.We are not oblivious of the fact that the High Court's jurisdiction in this behalf is limited. What would be substantial question of law, however, would vary from case to case. 23.Moreover, although, a finding of fact can be interfered with when it is perverse, but, it is also trite that where the courts below have ignored the weight of preponderating circumstances and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in considering the matter and in coming to its own independent conclusion. [See Madan Lal v. MST. Gopi Anr. (AIR 1980 SC 1754)]. 24.The High Court shall also be entitled to opine that a substantial question of law arises for its co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly, was laid in relation to the purported trade practices. We, therefore, cannot accept the said contention. This Court, in Hukma v. State of Rajasthan [AIR 1965 SC 476], laid down the law in the following terms : ".....Learned counsel rightly pointed that while S. 178-A has the result of placing the burden of proof that the gold was not smuggled on the accused, it is of no assistance to the prosecution to prove that the accused was carrying the gold knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India. Once, however, it is found, as it must be found in this case, in consequence of the provisions of S.178-A (the accused has not tried to discharge the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that the accused was carrying the gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is respectfully submitted that the Ld. Tribunal has recorded the above finding without any material or evidence on record and without even looking into the content of the letter dated 12-11-1999 of the ABN Amro Bank. It is submitted that the bank's letter referred to invoices dated 25-10-1999 and in such circumstances the question of effecting delivery by the bank to the authorized dealer under delivery challan dated 23-10-1999 which is two days prior to the date of invoice is not credit worthy. It is also against normal trade practice and makes the transaction suspect. Further, a bare glance at the documents of the bank undoubtedly establishes that the stock of FM GB shown in the delivery challan does not establish that the said challan relates to the gold pieces seized under panchnama dated 28/29-10-1999. It is submitted that no convincing record/ evidence is led before the competent authority that the 200 seized pieces of gold bars are clearly linked/part (including the same brand name) of the stock shown in the aforesaid delivery challans and invoices. Thus, a vital link of sale transaction of the seized gold is not fully established. It is the duty of the person purchasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 433 (Trib.) had held that : "The detailed statement before Customs officers prima facie merits acceptance and by mere retraction, the original statement does not lose all evidentiary value." Since the retractions are made belatedly and without any supporting evidences, these have no evidentiary value in the eyes of law." 35.It was furthermore held by the Tribunal that the bills had been prepared subsequently. 36.The learned Commissioner had opined that their existed serious discrepancies in the bills or vouchers. The Tribunal, in our opinion, should have dealt with the aforementioned findings of the Commissioner. 37.Mr. Vella Palli has strongly relied upon Meenakshi Mills, Madurai v. The Commissioner of Income Tax, Madras [1956 SCR 691], wherein it was held : ".....On these facts, the Tribunal came to the conclusion that the contentions of the Department had been fully established, namely, that the intermediaries were dummies brought into existence by the appellant for concealing its profits, that the sales standing in their names were sham and fictitious, and that the profits ostensibly earned by them on those transactions were, in fact, earned by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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