TMI Blog2018 (5) TMI 1625X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that: - as the appellant Shri S.A. Khan have not discharged the burden of proof under Section 123 of the Act (the presumption of gold being smuggled), the confiscation is upheld but the absolute confiscation is set aside by the learned Commissioner. Appeal allowed in part. - Appeal Nos. C/55449, 55248 & 55450/2014-CU[DB] - Final Order Nos. 70944-70946/2018 - Dated:- 22-5-2018 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Anil G. Shakkarwar, Member (Technical) Shri K.K. Srivastava, Advocate (in A. No.C/55248/2014) Shri Kapil Vaish, Chartered Accountant, (for others) for Appellants Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent ORDER Per: Anil Choudhary Appellant (Shri Shakil Ahmad Khan, further S.A. Khan for short) works alongwith his friend Mr. Shakil in his shop which is situated near Pachkauri Hotel, Ghantagar, Bahraich. The other two appellants are engaged in jewellery business. 2. That on 27/11/2013, a team of Customs (Preventive) Officers of Lucknow Commissionerate intercepted the appellant (Shri S.A. Khan) when he was travelling by UPSRCT Bus No. UP33T9412 on Barabanki Bahraich Road near Ram Nagar Railway Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gold recovered from Mr. Shakil Ahmad Khan. 8. That a statement of Shri Mridul Agarwal recorded on 05/12/2013 wherein he stated that he knew the appellant (Mr. Shakil Ahmad Khan) as an artisan of jewellery and he use to make jewellery and do repair works for him. He had no other relation with him; that he had not given/handed over any gold to the appellant; he had no connection with the seized foreign origin gold; that the appellant (Shri S.A. Khan) had falsely taken his name and that he was not engaged in any illegal work like smuggling. He also alleged that he had given some jewellery to appellant few days back for repairing but appellant was not returning the same and he had scolded him badly for that 3-4 days back and probably for that reason of anger, appellant had involved/implicated him in the case. With regard to telephonic call with the appellant on 27/11/2013, Mr. Mridul Agarwal stated that the said call was in connection with business and return of jewellery. 9. That another statement of Shri Shakil Ahmad Khan was recorded on 13/01/2014 wherein he stated that he had taken 4 pairs of payal each kardhani and 2 pairs each of toda approx weighing 1 kg (all silver) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Khan used to regularly travel between Bahraich and Lucknow and had frequent telephonic conversation with Shri Mridul Agarwal and Shri Satish Kumar on journey dates over their aforesaid cellular phone numbers from different locations between Bahraich and Lucknow. (g) Statements of Mr. Shakil Ahmad Khan (Appellants herein), Shri Mridul Agarwal, Shri Satish Kumar and Shri Krishan Kumar were full of contradiction. 12. That in response to the aforesaid show cause notice dated 15/05/2014, appellant submitted its defence reply dated 11/06/2014. It was submitted that :- (a) Appellant is an artisan and has been working for making jewellery for the last 25 years. (b) That the entire case of the appellant was incorrect and he had wrongly been implicated by the officers. He denied his involvement in movement and/or smuggling of said gold. (c) On 27/11/2013, he was going to Lucknow for the treatment of his wife Mrs. Tajni Begum. At Ramnagar Railway Crossing, the Customs Officers checked the bus and asked every passenger about a black packet. The officers asked about his profession when he told that he is a gold artisan, the officers dragged him, alleging that the gold belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1000gms of gold. Further, he knows Shri S.A. Khan, as the jewellery artisan, as he does good work, for which he keeps engaging him for manufacture of new jewellery and also repair of old jewellery from him, from time to time. For this purpose, he often talks to Shri Khan on Telephone/Mobile Phone. Further, He submitted that he does not know why Shri Khan has taken his name, as owner of the part of the gold, so as to falsely implicate him. He has got no manner of concern with the gold recovered from Shri S.A. Khan. He further stated that during the time of search at his premises, he was not available, as had gone to Lucknow for medical checkup. The Officers of Customs had forcefully taken the statement of his father, according to their dictation. He further stated that no case of penalty under Section 112 is made out, against him. 15. The said SCN was adjudicated on contest vide Order-in-Original dated 05/08/2014 wherein the adjudicating authority, by rejecting the contentions of the appellants and relying on the allegations of the revenue based on the initial statement of Shri S.A. Khan, have held that Mr. S.A. Khan is an artisan and as such it is beyond his capacity to own/deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... link these appellants with the seized Gold, save and except the retracted statement (s) of Shri S.A. Khan and Shri Krishan Kumar Agarwal father of Shri Mridul Agarwal. In the search, conducted by the Customs Officers at the shop and residential premises of these appellants, nothing incriminating was found. It is further contended that imposition of penalty in absence of independent corroborative evidence, is bad and fit to be set aside. He further prays that the order for imposition of penalty, being based on assumptions and presumptions, is fit to be set aside. 17. The Learned Counsel for the appellant Shri S.A. Khan states that it is a case of seizer of goods/gold within the country and not at the customs post or the Border of India and Nepal and/or seizer in the near vicinity of the Border. As such confiscation of Gold, on presumption of the same being smuggled from the Nepal into India in violation of Notification No.9/96 Cuss, is bad and not tenable. That revenue have not established smuggling of gold against the appellant. It is admitted case of the revenue that the appellant was carrying the gold from Bahraich to Lucknow. He further submits that in view of town seizer, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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