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2017 (7) TMI 451 - CESTAT ALLAHABAD

2017 (7) TMI 451 - CESTAT ALLAHABAD - TMI - Detention of imported goods - Gold - smuggling - prohibited item - absolute confiscation - onus to prove - Held that: - Section 123 of the Customs Act, 1962 is made applicable to Gold through Sub-section (2) of Section 123 of the said Act and the said Section provides that if the goods to which said Section is made applicable are seized under the reasonable belief that they are smuggled goods than the burden to prove that the goods are not of smuggled .....

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sed said gold from M/s H.H.E.C. of India who had imported and got said gold cleared through Bill of Entry No. 5913058 dated 25/06/2014 in the said Show Cause Notice. - The appellant have discharged burden to establish that the Gold under seizure was legitimately possessed by them and the same was legitimately cleared through filing Bill of Entry and payment of Customs duty as required under Section 123 of the Customs Act, 1962. Therefore, we find that the said Show Cause Notice dated 09/01/2 .....

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ellant Shri Pawan Kumar Singh, Superintendent (AR), for Respondent ORDER Per: Anil G. Shakkarwar The present proceedings are carried out in compliance to the directions of Hon ble High Court of Allahabad through its order dated 30/05/2017 in Custom Appeal No. 163 of 2017. The present appeal was disposed by issue of Final Order No. 70267/2017 dated 20/01/2017 by Single Member Bench of this Tribunal. Revenue preferred Customs Appeal No. 163 of 2017 before Hon ble High Court of Allahabad. Through t .....

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oceedings were carried out. 2. The brief facts of the case are that the appellant M/s AIMR Jewels Pvt. Ltd. 200, Agra are having two establishments one at Kucha Mahaganj, Chandni Chowk, Delhi & one more at Kinari Bazar, Agra. Shri Swadeh Verma is the Director of AIMR Jewels Pvt. Ltd. Appellants were engaged in the trade of Gold & Silver in Bullion form and Jewellery of Gold & Silver. On 11/07/2014 12 Kg. of Gold was seized by Commercial Tax Department of Uttar Pradesh. Subsequently, .....

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13-14/18132A01268906 to the driver of the said vehicle Shri Ajay Kumar. Such road permits are pre-authenticated by the Sales Tax Department of the state. From the copy of the said road permit filed at Annexure A-8 in the appeal paper book it is clear that the said permit mentioned the description of the goods, the weight, quantity, value in words and figures, reference to Challan No. 14-15/1 dated 11/07/2014, destination as Agra, name of the consignor as AMIR Jewels, Chandni Chowk, New Delhi wit .....

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ed the Challan. Further, at the time of interception the driver could not produce the permit. Hence, Commercial Tax Officers issued detention memo with respect to the said Gold Bars. Subsequently, Authorized Representative of the appellant visited the office of Commercial Tax and produced the said road permit which was by mistake left behind by the driver. Further Commercial Tax Authority refused to acknowledge the same as they had already detained the Gold. A Show Cause Notice was served by Com .....

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They further detained the said Gold by detention memo dated 16/07/2014 and informed Commercial Tax Officers not to release gold without NOC from Deputy Commissioner of Customs, Bareilly. The detained Gold was deposited in the Government Treasury at Ghaziabad and the said car was also detained on 21/07/2014. The Customs Authorities carried out the investigations and they issued with a Show Cause Notice dated 09/01/2015. 3. As per the said SCN, in the statement recorded under Section 108 of Shri S .....

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d 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 were 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 .....

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14 and 02 Kg. gold (two bars of one Kg. each) vide tax invoice dated 11/07/2014 from the same firm. Mr. Swadesh Verma further stated that he asked M/s Bilasa & Sons for the evidence of import of the gold seized by the Commercial Tax Authority and subsequently by the Customs. He came to know that M/s Bilasa & Sons had purchased gold from Supreme gold vide invoice No. 54/GLD/2014 15/031 dated 07/07/2014. Further M/s Supreme gold had purchased gold from M/s HHEC and produced copy of the sto .....

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tion 108 on 01/8/2014, wherein he stated that they were registered with the Commercial/Sales Tax Department, their firms sold 02 Kg. of gold bar and also the 10 Kg. of gold bar vide the invoice numbers as stated by Swadesh Verma. He Further, stated that they had purchased 16 Kg. gold bars from M/s Supreme Gold on 07/07/2014. That the sold 12 gold bars was part of the consignment of 16 KG of gold bars received from M/s Supreme gold through invoice dated 07th July, 2014. The said transaction of M/ .....

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Gold, Delhi and recorded statement on 01/08/2014 under Section 108 wherein he stated that they were registered dealers in gold with the Commercial/Sales Tax Department and they had 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 Corporat .....

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t. 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 statement as desired. On further summons to Shri Omrendra Sharma, Deputy Manager, Brinks India Ltd, Delhi he appeared before the Customs and stated that they received shipment of gold of M/s HHEC Ltd. (300 gold bars .....

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t in their vault. He also submitted copies of the documents namely shipping documents like invoice, bill of entry, packing list and interest certificate, bill of entry for warehousing, gate pass, ex-Bond bill of entry, copy of delivery order issued by HHEC Ltd in favour of Supreme gold etc. On further enquiry from Shri Ujjal Datta, Chief Finance Manager of the Handicraft and Handloom Export Corporation of India Ltd replied by their letter dated 04/08/2014 and acknowledged the following documents .....

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per documents provided by M/s HHEC Ltd. It appeared to revenue on perusal of the chain of documents and the transaction, that the 12 Kg of gold seized by the Customs officer had brand name/marks as VALCAMBI SUSSIE , but none of the gold bars bear brand name as AL ETIHAD which appeared to be mark on the gold bars procured by Shri Swadesh Verma as per information with Revenue. Therefore, the variation of the brand name of Gold bars from the gold bars which were procured against the documents submi .....

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egally into India and was 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 was also liable to confiscation under Section 115(1) (a) and 115(2) of the Customs Act, 1962. 4. The S .....

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Both the orders were issued by Shri Gujral, the CFM of HHEC and both the orders were very categorical for making the supplies from the consignment received under AWB No. 176 8732 764 dated 24th June, 14. Further as per the invoice issued by HHEC on Supreme gold for supply of Gold Bars made through the aforementioned delivery Challan dated 07th July, 15, the said invoices also carry mention of suppliers Invoice No.INTLOGL-03 2014. This invoice number is same as with the invoice associated with bi .....

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asa & Sons Pvt. Ltd in his statement accepted purchase of 16 Kg. Gold bars from Supreme Gold Pvt. Ltd. and further informed that Bilasa & Sons sold 02 Kg. of Gold bar vide invoice dated 11th July, 2014 and 10 Kg. Gold bars vide Invoice dated 07/07/2014 to the appellant. Learned Commissioner found that the 10+12 gold bars were sold to the appellant by Bilasa & Sons, where from the consignment of 16 Kg. of gold bars received from Supreme Gold. The authenticity of payments is also estab .....

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ed. Aggrieved by the said order, the appellants are before this Tribunal. 5. The ld. Counsel for the appellant has argued that they had purchased the said Gold Bars from M/s Bilasa & Sons Pvt. Ltd., Delhi vide proper tax invoices and the money for the same was also paid through the banking channel by RTGS. These facts have been stated in the said Show Cause Notice. Further, the transactions were tracked back through M/s Bilasa & Sons Pvt. Ltd., Delhi who had confirmed that they had purch .....

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-87327634 dated 24/06/2014 which was cleared from Customs under Warehouse Bill of Entry No. 5913058 dated 25/06/2014. The ld. Counsel for the appellant has submitted that they have established the entire trail of lawful import of said gold and payment of customs duty and possession of the said gold through various traders through the lawful issue of invoices and the money for the same was also paid through the banking channel such as RTGS. There was no scope for any doubt about the gold under se .....

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at the goods imported by M/s H.H.E.C. of India were having mark as AL ETIHAD whereas Gold Bars under seizure were having mark as VALCAMBI SUSSIE . He has further contended that only on the basis of such certificate dated 04/08/2014 claimed to have been issued that the said Gold Bars sold by M/s INTL Commodities DMCC to M/s H.H.E.C. of India were having marked as AL ETIHAD as the brand name. Revenue contended that the goods under seizure cannot be related to the above stated Bill of Entry No. 591 .....

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d that the statement dated 04/08/2014 of Shri Ujjawal Datta, Authorized Signatory of M/s H.H.E.C. of India and certified copies of document submitted by him and record which was relied upon submitted by him containing 16 pages that is relied for issue of said Show Cause Notice and said certificate dated 04/08/2014 is one of the documents mentioned therein. 7. Having considered the rival contentions and on perusal of the facts on record and particularly the Show Cause Notice and Section 123 of th .....

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e appellant has shown that he purchased the said gold from M/s Bilasa & Sons Pvt. Ltd., Delhi vide tax invoice dated 07/07/2014 and another dated 11/07/2014 and M/s Bilasa & Sons Pvt. Ltd., Delhi have proved that they had purchased said Gold from M/s Supreme Gold, Delhi vide invoice dated 07/07/2014 and further that Supreme Gold, Delhi have proved that they had purchased said gold from M/s H.H.E.C. of India who had imported and got said gold cleared through Bill of Entry No. 5913058 date .....

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