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TMI Blog2022 (9) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... eing searched three pieces of yellow metal in the form of bars having the inscription "Rand Refinery Ltd, South Africa, 1000g GOLD 9950 FINENESS 2017" were found kept in the pockets of white coloured cloth having black coloured zip wrapped around the waist of said Shri Ankit Bansal. Each gold bar was found packed in paper package bearing marking "KOLHAPUR GOLD LAB", Kucha Mahajani, Chandni Chowk, Delhi. Two weighment slips both bearing S.No. 219543 dated 23.10.2017 issued by Purana Dharam Kanta, Sarafa, Charitable Trust, 1168, Kucha Mahajani, Delhi was also found. Shri Ankit Bansal said that he was an employee of M/s. Kalindi Traders, Mathura whose proprietor is Shri Mukul on whose directions he carried the gold bars from Delhi to Mathura. The Officers of Customs Preventive called the departmental Jewellery Appraiser (Expert), Shri Vikram Bhasin, who examined the recovered yellow metal bars on 23.10.2017 itself and found the metal was Gold of 995 purity. Panchnama of 23.10.2017 in the presence of two independent witnesses who were accompanying the Customs Preventive Team was prepared. The said three gold bars were accordingly seized vide seizure memo dated 23.10.2017. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962. The said proposal was initially confirmed vide Order-in- Original No. 27/2019 dated 25.09.2019. The appeal thereof has been rejected vide Order-in-Appeal No. 1256-1257/2020-21 dated 13.01.2021. Being aggrieved, the appellant is before this Tribunal. 5. We have heard Shri Aakarsh Srivastava, learned Advocate for the appellants and Shri Nagender Yadav, learned Departmental Representative for the respondent. 6. It is submitted by the learned Counsel for the appellant that allegations of smuggling the gold of foreign origin are absolutely wrong. Shri Ankit Bansal was Shri Mukul Aggarwal's employee and he was carrying the impugned gold from Mathura to Delhi, against delivery challan for testing purposes as gold testing facility was not available in Mathura. The challan was very much in his possession along with a diary having bank details of Shri Aggarwal but both these documents though were recovered but were suppressed by the departmental officers. To impress upon the said suppression, it is submitted that from the statement dated 24.10.2017 of Shri Ankit Bansal, wherein, answer to Question No. 15, it is clear that he had given all relevant details including the 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling. Another decision of M/s. Anil Gadodia vs. C.C, New Delhi (Prev.) reported as 2020 (4) TMI 82 CESTAT, New Delhi has also relied upon for impressing upon non- admissibility of the statement which have not tested under Section 138 of the Customs Act. The order under challenge is accordingly prayed to be set aside and appeal to be allowed. 7. While rebutting the submissions, learned DR has heavily relied upon the statement of Shri Ankit Bansal, wherein, it was stated that Shri Ankit Bansal was carrying the seized gold bars of foreign origin in a cloth belt under the directions of Shri Mukul Agarwal and that he earlier had also been similarly carrying gold. It is submitted that since the seized gold has the stamp of "Rand Refinery Ltd., South Africa" and had also been so admitted, the seized gold is rightly held to be a smuggled gold. With respect to the applicability of Section 138B of Customs Act, 1962 it is submitted that when Shri Ankit Bansal had admitted about the allegations there was no need to test him through cross examination. The decision of Hon'ble High court of Kerala at Ernakulam in the case of N.S. Mahesh Vs. Commissioner of Customs, Cochin reported as 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth of the facts which it contains,- (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) When the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice." 8.2 The perusal thereof makes it clear that it is mandatory on the adjudicating authority to examine the witnesses before itself prior relying upon the statement irrespective it has not been so asked by the party whose statement has been recorded or who is relying upon the said statement. These are the observations of this Tribunal in the case of M/s. Anil Gadodia (supra). No doubt department has also relied upon a decision of Kerala High Court where denial of cross examination of witnesses was upheld. But perusal reveals that in that case the cross examination of departmental offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en recorded as the articles recovered from the personal search of Shri Ankit Bansal. Had he been carrying the delivery challan or any diary, as asserted, there seems no reason with the investigating/searching officers to not to mention the same. Mere production of delivery challan on the record at subsequent stage is highly insufficient to prove that the said delivery challan was in possession of Shri Ankit Bansal at the time he was intercepted with three gold bars. 10. Moreover, there is nothing on record to show any reason with those officers to suppress such vital document. Since we have already held that the appearance of gold bars was sufficient to give a reasonable belief to the investigating officers for the seized gold to be the smuggled one, Section 123 of the Customs Act comes into picture. The said Section has been reproduced by Commissioner (Appeals) in para 5.3.1 of the order under challenge. The perusal thereof clarifies that where any good has been seized under the reasonable belief of it being smuggled, the onus is not on the department to prove the goods to be smuggled one, the burden of proof shifts upon the possessor or the owner of the seized gold to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et checked the purity of the gold received after the said process that the same was sent to Delhi through Shri Ankit Bansal. 12. The purity of seized gold i.e. 995 (i.e., 99.5%) is highly been impressed upon by the appellant to have been corroborated even by the departmental appraiser. It is also heavily been impressed upon, that the gold of foreign origin always has purity of 999 (i.e., 99.9%). First of all there is no evidence produced on record that all the gold of "Rand Refinery Ltd, South Africa" has only purity of 999. Secondly, even if that argument is accepted the defence taken by the appellant appears to be contradictory. The purity of seized gold, apparently, and admittedly is 995. This was the purity even after getting the impurity mixed in the gold which was given to Shri Prabhas. From three of the letters of the appellant given to the department the contention of appellant is that the gold which he had given to Shri Prabhas was purchased from M/s S.B. Ornaments, M/s. Jai Laxmi and M/s. N.C. Jewellers. The invoice by M/s S.B. Ornaments dated 17.10.2017 has been specifically impressed upon. Perusal thereof shows that the gold provided by M/s. S.B. Enterprises was the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manipulate the defence, it was not difficult for him to shift such gold from his premises as was illegally/unauthorizely obtained/procured by the appellant. The seizure of gold was of 23.10.2017 where as search of his premises was 09.11.2017. It is coming apparent from the show cause notice that gold bars were scratched by the hammering process to know the serial numbers inscriber there upon. The plea taken by the appellant that the serial numbers are same is not sustainable as the process would definitely had rubbed the exact serial numbers, as it can reasonably be presumed about the hammering process. The conduct of the possessor/owner of the seized goods during investigation and his absence for a long time is a sufficient ground to hold that the defence created is an afterthought and is manipulative and that the same is sufficient to show that the seized gold is the smuggled gold. We draw our support from the decision in the case of State of Maharashtra Vs. Chidanand Raghuram Tunga reported as 1991 (51) ELT 43 (Bom). 15. In the light of the facts as observed and discussed above, we are of the opinion that the invoices, purchase r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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