TMI Blog2015 (12) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation under Section 125 of the Customs Act, 1962 when appellant has produced legal document of their licit acquisition. Accordingly, it is held that department is not able to establish the smuggled nature of seized foreign marked gold whereas claimant appellant has been able to discharge his burden by providing licit document of the purchase of 60 foreign marked gold biscuits. In the light of liberalized policy of the Central Government it cannot be held that all the foreign marked gold being bought and sold in India is of smuggled nature. Statements of both Smt. Chhabi Biswas and Shri Joy Gopal Biswas were written by one of the panch witnesses Shri Chandan Dey. Even their first statements dated 5/9/2000 only convey that they believed that foreign marked gold came from Bangladesh. The trail of Joynal was not pursued by investigation. It was not existing in the statements of Smt. Chhabi Biswas & Shri Joy Gopal Biswas as to how the seized gold was brought into India and by whom. In the above factual matrix, subsequent statement of Shri Joy Gopal Biswas dt. 22/9/2000 recorded in Judicial Custody was more detailed, authentic and the trail given by Shri Joy Gopal Biswas and Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kings were respectively recovered from the possession of Smt. Chhabi Biswas and Shri Joy Gopal Biswas. That preliminary testing by a local goldsmith showed the purity of gold biscuits to be 24 carats which was subsequently confirmed by the Chemical Examiner of the Customs House Laboratory. It is the case of Learned Consultant that though in the show cause notice dated -2/3/2001 and Order-in-Original dated- 19/12/2007 it is mentioned that Smt. Chhabi Biswas admitted the gold to be of foreign origin but in her statement dated-5/9/2000 on the date of seizure she only stated that 40 gold pieces recovered from her were believed to have come from Bangladesh. That this statement was written by one Shri Chandan Dey who was one of the witnesses of the Panchnama in the present proceedings. That Shri Joy Gopal Biswas also stated in his statement, also written by Chandan Dey, that gold biscuits seized from him were believed to have come from Bangladesh without any licit documents. That Shri Joy Gopal Biswas also stated that seized 60 gold biscuits were taken from one Joynal for the fourth time but no investigation was done to ascertain and apprehend Joynal. That providing cross examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the case laws of this bench in the case of Kapil Deo Prasad Vs. C.C. (P), Patna [2002 (02) LCX 0099] and made the bench go through para 9 of this case law to drive home the point that slight variations in the weight could be weighment errors on the date of seizure as all the seized gold bars has standard weight of 116.640 gms. That it is not necessary that buyer of gold should sign on a purchase bill as hyped by the adjudicating authority. That no CST was paid on such purchase by the seller as it was not a case of interstate sale and price of gold included the sale tax element for which seller of the gold is filing VAT returns and have a VAT registration. That Shri Laljibhai K. Soni has stated to have purchased gold from Banks and other persons who brought gold as baggage which is reflected in accounts maintained by Shri Lalji K. Soni and made the bench go through pages 186 to 197 of the appeal memorandum to highlight that Shri Laljibhai K. Soni has maintained records before and after the date of seizure and sales and purchases are indicated in these records for which payments are made against cheque as well as in cash. That sales made to Shri Nitya Gopal Biswas on page 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9/11/15 strongly defended the conclusions arrived at by the adjudicating authority . It is Revenue s case that the first statement of Smt. Chhabi Biswas Shri Joy Gopal Biswas clearly mention that seized foreign marked gold was smuggled from Bangladesh and there was no document with the appellants regarding licit acquisition of seized gold. That subsequently production of a sale bill from Shri Laljibhai K. Soni of Ahmedabad was only an afterthought and manipulated which has been amply justified by the Adjudicating authority in internal pages 17 to 19 of the Order-in-Original dated 19/12/2007. It was strongly argued by the Learned A.R. that Shri Nitya Gopal Biswas can hardly be considered capable of purchasing such a big quantity of gold biscuits That absolute confiscation of gold and imposition of penalties have been correctly made by the Adjudicating authority. 5. Heard both sides and perused the case records . The issues involved in these appeals are: (i) Whether appellant Shri Nitya Gopal Biswas has managed Bill No. 422 dated 29/8/2000 to cover up 60 foreign marked gold biscuits seized on 5.9.2000 which have been held to be of smuggled nature by the Adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itial statements of Smt. Chhabi Biswas Joy Gopal Biswas and investigation done at Ahmedabad established that Bill No. 422 dated 29/8/2000 was an afterthought and cover up action and the foreign marked gold was of smuggled nature . Various parameters taken into account by the Adjudicating authority while confiscating the foreign marked gold and imposing penalties are as follows: (i) That weight of the seized gold as per Pnchnama is 6996 gms. whereas this quantity is mentioned as 6998.400 gms. in sale Bill No. 422 dated-28/8/2000. (ii) That the sale bill dt. 28/8/2000 does not bear the signature of the buyer. (iii) That particulars of CST/Sales Tax paid by M/s. Laljibhai K. Soni are not appearing on sales bill dated-28/8/2000. (iv) That hand written bill book/computerized accounts are maintained in order to manipulate and manufacture document of dubious nature. (v) That the sale bill dated 28/8/2000 produced by Shri Nitya Gopal Biswas and the one maintained by the supplier Shri Laljibhai K. Soni are distinctly different and details of the gold bars are not mentioned in the registers. 6.2 On the issue of slight variation in the weight of the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary evidence produced by the appellants showing the legal purchase of the same from M/s. Chauhan Zevares Pvt. Ltd. and by referring to certain discrepancy in the said document of the seized gold biscuits. However, I find that the discrepancies referred to by the adjudicating authority are not real inasmuch as he has held that whereas the sale voucher shows the goods 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both are copies represent different documents. Further records maintained by M/s. Lljibhai Kanjibhai Soni, enclosed with the appeal memorandum of the claimant, also show huge transactions in gold bars and many of the transactions of purchase sale of gold are cheque sales. It is not the case of the Revenue that investigation with respect to some of the other entries in the accounts of M/s. Laljibhai Kanjibhai Soni, were also made and all were found to be bogus. Such records are maintained for the period prior and after the period when Sale Memo No. 422 datged-29/8/2000 was issued. As many as 4733 pcs. of gold bars are purchased 4152 are sold by M/s. Laljibhai Kanjibhai Soni in August, 2000 alone. In the light of the above glaring evidences it cannot be said that sale Bill No. 422 dt. 29/8/2000 was created afterwards as a cover up as held by the Adjudicating authority. 6.4 Adjudicating authority in his finding is also giving a finding in the order-in-Original that there is no legal requirement to mention the details of gold bars in the register but in the same breath continues to say that it is a normal business requirement for proper accounting of stock register, which is ast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Gold reserves to the country's assets. But every Central Bank still keeps a gold reserve called Monetary Reserve. Thus, gold in the hands of the Central Govt. would make the currency strong and conversely the gold in the hands of the public would weaken the currency. To wean away the Indian public from the craze of the gold and also to ensure stability of the currency the Gold (Control) Act, 1968 was enacted. In fact, the provisions had existed earlier in the Defence of India Rules also. Notifications were issued prohibiting entirely import of gold except by the Govt. Provisions such as Section 120 were incorporated in the Customs Act which continued the liability to confiscation of any gold illegally imported notwithstanding any change in its composition and identity. Provisions of Gold (Control) Act restricted the activity of refining of gold limiting it to the Govt. of India Mint. Making of gold of purity higher than 995 was also prohibited since the imported gold generally is of the purity of 999. This prohibition would make it easy to establish the imported character of the gold. The combined effect of all the acts and prohibitions was to prevent smuggling, to make disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn 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 registers nor is there any requirement to issue invoices under any Central Act. 6.5 CESTAT, Kolkata in the case of Giridhari Dubey Vs. C.C. (P) , Kolkata [2001 (11) LCX 0215) also made following observations in para 3 (C ) of this order : (c) In view of our findings we would set aside the order of confiscation of 32 pcs. of gold also relying at the findings of this Tribunal in the case of S.K. Chains reported in 2001 (127) E.L.T. 415 wherein in Para 10 of the reported decision the Tribunal has considered the effects of the liberalized policy as regards import and dealing in gold and thereafter concluded that that onus as placed under Section 123 was discharged in the facts of that case. We would also considering the onus under Section 123 has been discharged in the facts of this case by the appellants. If the Revenue wants that the gold dealers indulging in sale and purchase of foreign marked gold in India, should indicate the brand names and that discharge und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. In the present case the statements of both Smt. Chhabi Biswas and Shri Joy Gopal Biswas were written by one of the panch witnesses Shri Chandan Dey. Even their first statements dated 5/9/2000 only convey that they believed that foreign marked gold came from Bangladesh. The trail of Joynal was not pursued by investigation. It was not existing in the statements of Smt. Chhabi Biswas Shri Joy Gopal Biswas as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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