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TMI Blog2016 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the gold bars and that the same were given to him by one Md.Khalek Miah of Bangladesh to hand-over the same to one Shri Gedan Paul of Dibrugarh, Assam. That he knew Md.Khalek Miah of Bangladesh for the last 6(six) months and carried gold biscuits to Dibrugarh twice earlier also in the months of December, 2003 and February, 2004. It was further submitted by the Ld.Advocate of the Appellants that by a further statement Shri Babul Roy retracted his earlier statement and stated that the seized goods belonged to one Shri Swadesh Ch. Paul. That Appellant Shri Swadesh Ch. Paul vide letter dated 04.10.2004 claimed the ownership of seized gold bars and also produced a certificate from one Shri Nantu Banik, Pinky Jewellary, Municipal Road to the effect that his gold ornaments were converted into gold bars. That Adjudicating authority in the first round of litigation under Order-in-Original dated 01.03.2005 did not pass any order against the ownership claim of Shri Swadesh Ch.Paul, but a copy of Order-in-Original was endorsed to him. That the matter reached up to the Tribunal and this Bench vide Final Order No.A-1782-1783/KOL/07 dated 26.09.2007 remanded the case back to the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, there may not be any grievance in future about denial of justice. Therefore, the Authorities below are at liberty to come to a very rational conclusion following due process of law." 2.1 That as a result of the remand Order dated 26.09.2007 a Show Cause Notice dated 10.11.2009 was issued to Appellant Shri Swadesh Ch.Paul as to why the ownership of the seized gold should not be denied and as to why penalty under Section 112(b) of the Customs Act, 1962 should not be imposed upon the Appellant Shri Swadesh Ch.Paul. That under Order-in-Original dated 04.03.2011 in remand proceedings penalty of Rs. 10,000/- (Rupees Ten Thousand only) was imposed upon Appellant Shri Babul Roy and the ownership claim of Shri Swadesh Ch.Paul was not accepted. That Appellants felt aggrieved and filed Appeals before the First Appellate Authority who vide his final Order dated 16.12.2013 rejected the Appeals filed by the Appellants. Ld.Advocate argued that Order passed by the First Appellate Authority is not legally correct because in para 16 of the Order-in-Appeal dated 13.12.2013 First Appellate Authority has accepted the ownership of Shri Swadesh Ch.Paul when making the observation that the owner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a receipt from one Shri Nantu Banik, Pinky Jewellary, Municipal Road, to the effect that the seized gold bars were made from the gold ornaments belonging to his family. However, no cognizance of the communication dated 04.10.2004 was taken by the Adjudicating authority. The matter reached this Bench where the case was remanded to the Adjudicating authority on the Appeals filed by Appellant Shri Babul Roy and Shri Swadesh Ch.Paul. As a result of remand proceedings ordered by Order dated 26.09.2007 by this Bench a Show Cause Notice dated 10.11.2009 was issued to Appellant Shri Swadesh Ch.Paul as to why his ownership claim should not be denied and as to why penalty should not be imposed upon him under Section 112(b) of the Customs Act, 1962. Adjudicating authority in remand proceedings vide Order dated 04.03.2011 passed following observations while rejecting the ownership of Shri Swadesh Ch.Paul.:- "12.4 From the Order-in-Appeal No.13/CUS(A)/GHY/2005 dated 08.09.2005 enclosed a receipt of one Nantu Banik, Pinky Jewellery, Municipal Road as supporting evidence for his claim of ownership of the gold bars. In his order the Commissioner(Appeals) mentioned that this receipt does not est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue is not applicable to the facts of the present case. In this relied upon case law the gold bars seized from the Appellant bore foreign made stamps of Johnson Mathey and Co.Ltd., 999 10 tolas, and 2= bars bore marks of N.M.Rothschild and Sons 10 tolas (999.0). It was in this regard Honble Apex Court observed that burden of proving, that such foreign marked gold bars not being of smuggled, was on the Appellant Shri Kewal Krishan. In the present case none of the seized gold bars bear any foreign markings. The implicating statement of Shri Babul Roy has been retracted. The method of concealment of the seized gold bars in the rectum of Appellant Shri Babul Roy is no doubt very suspicious, but that does not establish that seized gold bars are of foreign origin. Secondly the seizure of gold bars has also not been effected in a Customs area to shift the onus on Appellants. 6. Ld.Advocate appearing on behalf of the Appellants relied upon the case law Nand Kishore Modi v. CC(Prev.), West Bengal (supra) to argue that once Appellants produce the Bills then the burden stands discharged. It is observed that in the relied upon case this Bench passed following observation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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