TMI Blog2017 (3) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Trade Tax authorities. I hold under the facts and circumstances, the appellant have discharged their onus as required u/s 123 (1) and (2) of the CA. I further hold that Section 123 of the CA requires to explain the licit source of acquisition and not source of source. Accordingly, I find that the impugned order is untenable being erroneous. Gold to be returned - confiscation with penalty set aside - appeal allowed - decided in favor of appellant. - C/70251/2016-CU[SM] - A/70267/2017-SM[DB] - Dated:- 20-1-2017 - Mr. Anil Choudhary, Member (Judicial) Shri A.P. Mathur, Advocate for Appellant Shri Pawan Kumar Singh, Supdt (AR), for Respondent ORDER Per Anil Choudhary The present appeal is filed by AIMR Jewels Pvt. Ltd. against Order-in-Original No. 03/COMMR/2015-16 dated 27/11/2015 by which 12 gold bars recovered from the appellant during transit from Delhi to Agra by the Sales Tax Authority and subsequently seized by the Customs Authority from the Sales Tax authority, have been absolutely confiscated along with confiscation of Toyota Etios Liva car valued at ₹ 3 Lakhs with option to redeem the car on payment of-RF ₹ 01 Lakh and further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight, quantity, value in words and figures, reference to Challan No.14 15/1 dated 11/07/2014, destination Agra, name of the consignor AIMR Jewels Chandni Chawk, New Delhi with their Tin Number, contains the Vehicle Number, Name of the driver, Signature of the driver and has been signed by Mr. Swadesh Verma, authorized signatory of the appellant. The driver of the car had kept the Gold in the drawer below the driving seat of the car for the purpose of safety and security, as the goods being of high value. The said car No.UP-25 AV/2924 Toyota Etios Liva Car had been purchased by the appellants under sale agreement dated 24/05/2014. During the course of transport the said car was intercepted by the Sales Tax Department of Uttar Pradesh at Sector-60, Noida. On checking the car, the officers found gold bars available in the car. The officers took the gold in their possession/custody. The driver of the car Ajay Kumar produced the Challan. It further appeared that the said road permit which was lying in a separate envelope was not picked up by the driver Ajay Kumar from the Delhi branch of the appellant. Therefore, at the time of interception the driver only produced the Challan before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gold pursuant to its import. 4. As per the SCN in the statement recorded under Section 108 of Shri Swadesh Verma director of AIMR Jewels wherein he stated that they deal and/or are in the business of gold and silver jewellery and bullion and are having the offices and shops at Delhi and Agra, They stated that they are in this business since May, 2011 and have taken franchise of Reliance Telecommunications also. That the vehicle No. UP-25 AV 2924 belonged to his firm AIMR Jewels Pvt. Ltd and was bought from Mrs Ruchi Rastogi wife of Shri Vineet Rastogi of Bareilly under deed of sale. That they had got made safety boxes beneath the front seat of the car for safe transport of jewellery and bullion. He also deposed that he knew Mr and Mrs Rastogi for last 1.5 years and they were also in the business of jewellery and where in regular contact with them. As Mrs Ruchi Rastogi wished to sell her car and he needed a car for his business, so he had bought the car from her under sell deed for ₹ 04 Lakhs. As the said car was purchased under loan by Mrs Ruchi Rastogi, hence the transfer of name could not take place immediately. On 11/07/2014 he sent his driver Ajay Kumar along with 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 wherein he stated that they are registered dealers in gold with the Sales Tax Department and they have trade relations with Bilasa Sons Pvt. Ltd. That Supreme Gold sold 16 KG of gold bars (16 bars) vide their sale invoice dated 07th July, 2014 to M/s Bilasa Sons and payment for this was received through bank via RTGS. That Supreme Gold had purchased gold bars from the Handicraft and Handloom Export Corporation of India Ltd, Delhi (HHEC for short). The 16 gold bars of one KG each which was sold to M/s Bilasa Sons was a part of consignment of 39 KG of gold bars received from the Handicraft and Handloom Export Corporation of India Ltd, Delhi . Further, it was deposed that the payment was made through bank transfer and also submitted a self attested copy of their bank statement/letter. Further, Mr. Pawan Kumar Aggarwal, also filed a statement dated 07th July, 2014 issued by M/s Brinks India Pvt. Ltd, Delhi for delivery of 17 KG and 22 KG of gold to them on behalf of HHEC Ltd. On further enquiry from Branch Manager, Ratnaker Bank Ltd., Delhi to produce the certified copy of the bank s statement of Supreme Gold Pvt. Ltd, in compliance the bank gave a certified copy of the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement under Section 108 and moreover an incomplete statement, was submitted on 15th December, 2014 by Shri Anil Sharma who appeared in response to summons dated 05th December, 2014. Hence, it appeared that the seized 12 KG gold is imported illegally into India and is therefore liable to confiscation under Section 111(d), (l) and (m) of the Customs Act read with Section 123 of the Act, Section 5 and 11(i) of the Foreign Trade (Development Regulation) Act, 1992. Further, the vehicle Toyota Etios liva car No.UP-25 AV 2429 used as a medium of transport for the above said seized 12 KG Gold Bars, in special cavity built in the car is also liable to confiscation under Section 115(1) (a) and 115(2) of the Customs Act, 1962. 5. The SCN was adjudicated on contest, absolutely confiscating gold and confirming the confiscation of the car and also imposing penalties and redemption fine on car as mentioned in para (1). The learned Commissioner have held that the chain of transaction is not established, that is from the importer of the said gold namely HHEC Ltd to the appellants. M/s Brinks India Ltd received one delivery order for 22 KG and another delivery order for 17 KG both dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and/or sale, have been paid through the banking channel vide RTGS. Such facts on record have not been found to be untrue by the revenue. The learned Counsel further argues that under such circumstances the appellant have discharged their onus and for some minor discrepancy, if any, as alleged or observed by the learned Commissioner, it cannot be held that the appellant failed to discharge their onus under Section 123 of the Customs Act. The appellant is required to only discharge their onus as regards source of acquisition. They are not for required to further prove source of source. The learned Counsel further urges that admittedly the gold was seized and initially intercepted by the Sales Tax Department and its officers and accordingly the provisions of Section 123 are not attracted in the facts of this case. The learned Counsel relied on the Ruling of this Tribunal in the case of Ghewar Chand Vs Commissioner of Central Excise reported at 1999 (111) E.L.T. 379 , wherein relying on the Ruling of Hon ble Supreme Court in the case of Gian Chand Vs State of Punjab 1983 (13) E.L.T. 1365 (S.C.) when gold having been initially seized by Police officers and not Customs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Having considered the rival contentions, I find that law requires such person as in this case, the appellant to discharge the onus as regards the licit purchase and acquisition of the specified item or gold under Section 123 of Customs Act. It is admitted fact that the appellant have produced tax invoice in support of purchase of the gold in question from another dealer who is also duly registered with the trade tax and other authorities, and it is also further fact on record that payment for the purchase was made through the banking channel RTGS. It is further evident from the records that the said gold was being transported by the appellant from the Delhi branch to their Agra Branch and proper Challan had been issued, as well as road permits/waybill which was pre-authenticated by the Sales Tax Department and the appellant is required to maintain proper records of usage of such road permits and account for the same before the Trade Tax authorities. I hold under the facts and circumstances, the appellant have discharged their onus as required under Section 123 (1) and (2) of the Customs Act. I further hold that Section 123 of the Customs Act requires to explain the licit source ..... 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