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TMI Blog2019 (8) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... aryar & Shri Raju Pandey. They were having eight gold bars with them which weighed around 8 Kgs. The said vehicle was taken to DRI Office situated at Vishal Khand, Gomti Nagar, Lucknow for detailed examination. On physical examination total 8 Kgs of gold was found in the said vehicle. The said gold was recovered from the compartment of Horn on the steering wheels of the said vehicle under the regional belief that the said gold was liable for confiscation. The said gold was detained. Detained gold was seized under the Panchnama dated 21.11.2015. Statements of Shri Vinod Kumar Verma, Shri Rinku Verma, Shri Saharyar & Shri Raju Pandey was recorded on 21.11.2015. On 21.11.2015 all the said four persons were arrested and were produced before Special Judicial Magistrate (Economic Offences Court), Lucknow whereupon they were remanded to judicial custody. Shri Vinod Kumar Verma was granted bail by Hon'ble Allahabad High Court, Lucknow Bench, on 17.03.2016, Shri Rinku Verma was granted bail on 06.04.2016, Shri Saharyar was granted bail on 09.05.2016 & Shri Raju Pandey was granted bail on 09.05.2016. On 09.12.2015 and 14.03.2016 DRI Officers preferred overseas inquiry by writing letters to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rinku Verma, S/o Shri Bhairav Prasad Verma, R/o Village- Basantpur Ram Basera, Post-Geeta Press, Thana-Rajghat, Distt- Gorakhpur under Section 112 (a) & (b) of the Customs Act, 1962; 44.5 I impose penalty of Rs. 10,00,000/- (Rs. Ten Lakh only) upon Noticee No.3 Shri Saharyar, S/o Shri Abrar, R/o 272, Ismailpur, Tahsil-Gorakhpur, Thana-Nakkhas Kotwali, Sadar, Distt- Gorakhpur under Section 112 (a) & (b) of the Customs Act, 1962; 44.6 I impose penalty of Rs. 10,00,000/- (Rs. Ten Lakh only) upon Noticee No.4 Shri Raju Pandey, S/o Late Shri Jwala Pandey, R/o Village- Malhipur, Post-Piprauli Bazar, Thana-Sahjanwa, Distt- Gorakhpur under Section 112 (a) & (b) of the Customs Act, 1962; 44.7 I impose penalty of Rs. 5,00,000/- (Rs. Five Lakh only) upon Noticee No.5 Shri Manoj Kumar, S/o Shri Ram Nath, R/o Village-Turkmanpur, Patwari Tola, PO. Geeta Press, PS. Rajghat, Gorakhpur (UP) under Section 112 (a) & (b) of the Customs Act, 1962." Aggrieved by the said order appellants are before this Tribunal. 3. Heard Shri A.P. Mathur learned Advocate appearing for the appellant. He has submitted that Shir Vinod Kumar Verma was the legal owner of 8 Kgs gold confiscated through the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has supported the impugned order. 5. Having considered the submissions from both the sides and on perusal of record, we note that Original Adjudicating Authority was submitted with reply dated 02.12.2016 by one of the appellant Shri Manoj Kumar Verma. The said reply is reproduced at para no.28.3.1 of the impugned order. For the sake of ready reference the same is reproduced bellow:- a. 'Briefly stated the facts of the case are that the Party is the proprietor of the firm M/s Aryan Metal Industries, Gorakhpur, which deals in non ferrous metals and their products. Accordingly it is registered by the Assistant Sales Tax Officer, registration Unit-1 Gorakhpur under certificate of Registration and Allotment of TIN-09518611474 under the provision of UP VAT Rules 2007 dated 29.01.10. A copy of this Registration Certificate is annexed hereto as Annexure No.-1. b. The party had business relations with the Firm M/s Saakshi Securities Limited a Non-Banking Finance Company (NBFC) of Ahmedabad having a corporate office at 11, Janki Plaza, Sector "G", Jankipuram, Lucknow. Holding a Certificate of Registration No. - 01.00217 a copy whereof is annexed hereto as Annexure No-2. c. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Act, 1962 is proved fallacious and illogical. Similarly the charge of Violation of Section 112 of the Customs Act, 1962 is a misnomer because the goods have been as acquired within the country from a reputed firm. Therefore, the goods are not liable to confiscation nor is the party liable to imposition of penalty. The delay in submitting the Defence Reply is due to serious illness of wife of the Party Vinod Kumar Verma, papers/documents of whose treatment are annexed hereto for substantiation Annexure No-4. e. The Party would like to be heard in person and further he wishes to cross-examine the Panchnama witnesses as also S/Shri Shri Raju Pandey, Saharyar and Rinku Verma to Show the fallacy of their statements and liable to bring forth the virtual truth. f. In view of above the party is not liable to penalty nor is God seized liable to confiscation." Further, it is relevant to reproduce para no.28.3.2 for ready reference and the same is reproduced bellow:- 28.3.2 Reply dated 02.12.16 submitted by noticee No. 2 - Shri Rinku Verma, 3 - Shri Saharyar & 4- Shri Raju Pandey- a. "The facts of the case are that the Noticees are employees of M/s Aryan Metal Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '35. I find that Noticee No.1 neither submitted anything in writing nor submitted any document before the investigating agency (DRI) or before the adjudicating authority upto one year of booking off the case by the DRI in relation to sale or purchase of the seized 08 foreign origin gold bars. It is only for the first time in the submission dated 02.12.2016 he has submitted documents claiming purchase of the seized 08 foreign origin gold bars. It is quite surprising to note that if they were having any such documents why did they not produce before the investigating agency at any point of time during investigation or before the adjudicating authority immediately after issuance of SCN. Under the circumstances, such documents produced for the first time that too after one year from the date of seizure cannot be accepted as an evidence in absence of any corroborative document to substantiate their claim. Further, I have already discussed in para 33 above that the confessions off the noticeees before the DRI Officers while tendering their statements under Section 108 of the Customs Act, 1962 are acceptable as evidence.' 7. On going through the reproduced part of the Order-in-Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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