TMI Blog2022 (6) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... . As under the same will, late father of the appellant has also bequeathed immovable property to the mother of the appellant, thus there is hardly doubt as regards the will being not genuine. The documentary evidence is supported by oral evidence, have more weight and legality and overrides the oral statement with regard to source of the gold bars, stated initially. The appellant have reasonably explained the licit possession of the two gold bars, as received by way of succession under the will of his father. But still the source of licit acquisition by father of appellant is not on record, neither the same is mentioned in the will dated 15.02.1999 - the order of confiscation is upheld under Section 111(m) with option to redeem on payment of duty and redemption fine of Rs.1,00,000/- - Confiscation under Section 111(l) is set aside - penalty under Section 112(a) is reduced to Rs. 50,000/- - penalty under Section 114AA is set aside. Appeal allowed in part. - Customs Appeal No. 52607 of 2019 - FINAL ORDER NO. 50518/2022 - Dated:- 16-6-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Sh. Rajesh Rawal, Advocate for the appellant Sh. Rakes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the source of the gold bars could be explained only by his brother in law, Sh. Arvind Jalan and father in law, Sh. Chandi Prasad Jalan; that he provided the residential address of both Sh. Arvind Kumar Jalan and Sh. Chandi Prasad Jalan; that his daughter, Smt. Shyama Agarwal had given her 1 kg. gold bar (gifted by her maternal uncle) to his wife for safe custody; that regarding the source of Rs.11,31,000/- found at his residence, he stated that the cash resumed was the sale proceeds of his firm, M/s New Sky International and he submitted the cash book of M/s New Sky International, for the month of April, 2017 (24.04.2017 to 14.04.2017); that the cash was the sale proceeds of the trading of the goods, mobile phones; that he would submit the copies of the VAT returns for the period from April, 2016 to April, 2017, income tax returns for the last two years and cash sales invoices for the month of April, 2017 within a week. 4. Since, the appellant had revealed that the gold bars recovered and resumed from his residence were gifted to his daughter and wife by his in laws, summons were issued to Sh. Arvind Jalan and Sh. Chandi Prasad Jalan on 15.06.2017 to appear on 30.06.2017 but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promised in his statement dt. 05.06.2017 recorded under Section 108 of the Customs Act, 1962, submitted the copies of the Sale Ledger Account, Cash Sales Invoices/ vouchers for the period 01.04.2017 to 14.04.2017 and Sales Tax return of M/s New Sky International owned by him, for the period April, 2016 to June, 2017 evidencing the sale proceeds in support of the cash amount of Rs. 11,10,000/- resumed from his residence. The said documents were submitted vide letter dt. 23.06.2017. The sales invoices, Sale Account Ledger were scrutinized vis-a-vis Sales Tax Returns and same were found in order. 9. The appellant in his statement dated 05.06.2017 had revealed that both the gold bars were gifted by his in laws, Sh. Arvind Jalan and Sh. Chandi Prasad Jalan to his daughter and wife. Therefore, both were issued four summons each, but neither of them appeared before the summoning authority nor did submit any documents evidencing the source of two gold bars of foreign origin found in possession of the appellant. Hence, summons were again issued to the appellant on 11.10.2017 to appear on 13.10.2017. 10. Whereas the appellant appeared on 13.10.2017 and his voluntary statement was reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to why not the gold bars of totally weighing 2000 gms., which appeared to be of foreign origin having market value of Rs.59,10,000/- be not confiscated under the provisions of Section 111(d) and (l) of the Act with further proposal to impose penalty under Section 112(a) and 114AA of the Customs Act, 1962. 13. The appellant contested the show cause notice and filed reply inter alia stating that the subject two gold bars were owned by his late father Sh. Mohan Lal Aggarwal. His late father during his life time had executed a will on 15.02.1999 with regard to his movable and immovable property. Under the said will his father has bequeathed the said two gold bars to him, which has been recovered and seized from his possession. It was further submitted that his father has passed away on 13.03.1999, and thereafter the death of his father, he was owner of the gold bars weighing 2000 gms. having foreign marking. He further mentioned that he had brought the fact of will to the knowledge of the officer at the time of search/ investigation. However, the same was not considered. 14. The show cause notice was adjudicated by the Additional Commissioner who has accepted the explanation re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.). It was also urged that absolute confiscation of the gold bars is bad, without option to redeem the same. 16. Learned Commissioner (Appeals) was pleased to dismiss the appeal upholding the order-in-original. 17. Being aggrieved, the appellant is before this Tribunal inter alia on the grounds urged before the courts below. That the appellant had mentioned the fact of receiving the said two gold bars under will by succession from his late father. This contention is not by way of afterthought as alleged by the Court below, as the said contention also finds mention in the show cause notice in para 17(ii). Thus, the Court below has committed a mistake of fact and the impugned order is vitiated. Learned Counsel for the appellant reiterates the grounds taken before the Court below and further urges that under the facts and circumstances the appellant have given a cogent explanation regarding the licit source of possession of the two gold bars. Further, the said cogent explanation was rejected arbitrarily by the Court below. It is also urged that the family of the appellant is in good financial position, which is also evident from the fact that the appellant has explained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. f) The appellant in order to rebut the presumptions, has taken several stands which are self-destructive, as was held by Hon ble Delhi High Court in Indu Ramchand Bharmani case 1988 (38) ELT 459. The multiplicity of these stands by itself destroys the bonafides of any of these stands. The appellant started with one stand and ended with altogether different stand, these facts show a desperate attempt on the part of the appellant to somehow save the gold items. Accordingly, he prays for dismissing of the appeal. 19. Having considered the rival contentions, we find that admittedly it is a case of town seizure. Further, neither there is any record of the appellant having entered into India from any foreign country during the recent past, nor any allegation that he was actively involved in smuggling of gold. Admittedly, it is a town seizure from the residence where the two gold bars in question were lying in the cupboard in the bedroom. As the two gold bars are having foreign marking, the onus is on the appellant to prove the licit source of acquisition. We find that during the course of investigation, the appellant had mentioned that the gold bars have been received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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