TMI Blog2024 (3) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and the provisions may be read accordingly. So far as may be only means with appropriate substitution of words as they apply to adjudication proceedings and do not mean that it is upto the adjudicating authority to follow the procedure u/s 138B or not. Thus, the two statements cannot be relied upon. As far as the telephonic calls are concerned, learned Senior Counsel does not dispute that Shri Amit Goel not only knew both Shri Rajesh Kumar (as an operator in the gold market) and Shri Pankaj Kumar (as his employee) but also that he would frequently call them. He also does not deny that Shri Goel had called them in the morning of the day of seizure. His explanation is that he called Shri Pankaj Kumar because he had not reported for work and called Shri Rajesh Kumar to enquire about the gold prices. These were part of the statement of Shri Amit Goel. We find that these are plausible explanations for the calls made. It does not emerge from the investigation as to what was discussed during the calls because the CDRS do not give recording of what was discussed but only who called whom and for how long. It also does not appear that during investigation, Shri Pankaj Kumar and Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs (Preventive), New Delhi visited the shop of Shri Rajesh Kumar at Chandni Chowk and seized 20 Kg of foreign marked gold from him under section 110 of the Customs Act, 1962 Act believing it to be smuggled gold liable to confiscation under section 111 of the Act and also seized Rs. 6.44 crores believing this amount to be sale proceeds of smuggled gold liable to confiscation under section 121 of the Act. 3. When any goods to which section 123 of the Act applies are seized under the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods rests on the person from whom they are seized and also on any other person who claims to be the owner of the goods. This section reads as follows: 123. Burden of proof in certain cases. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be (a) in a case where such seizure is made from the possession of any person, (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Rajesh Kumar. 7. When asked, Shri Pankaj Kumar said that he had brought the gold to Shri Rajesh Kumar along with his colleague Shri Santosh Kumar- another employee of Shri Amit Goel in Chevrolet Beat car which belongs to the company owned by Shri Amit Goel and that Shri Santosh Kumar had left after dropping him at the place of Shri Rajesh Kumar. Shri Santosh Kumar could not be traced and his statement was not recorded. 8. Statements of two of the employees of Shri Rajesh Kumar viz., Shri Ajay Mahto and Shri Manoj Kumar were also recorded who also confirmed that Shri Amit Goel would regularly send foreign marked gold to Shri Rajesh Kumar for sale. 9. During further investigations, call data records of the mobile phones were obtained. These also confirmed that Shri Amit Goel was in touch with Shri Rajesh Kumar and Shri Pankaj Kumar on that day and had made several calls to them before the seizure. When questioned, Shri Amit Goel said that he made several calls because Shri Pankaj Kumar had not reported for work on that date and that his calls to Shri Rajesh Kumar were related to enquiries about the prices of gold about which he contacts him on a regular basis. 10. After completing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do with the gold or the cash and he also did not contest their confiscation. 13. Learned authorised representative for the Revenue submits that when the appeal of Shri Rajesh Kumar was listed before the learned member, he was apprised that that appeal which arose from the same investigation in which this appeal is pending before the division bench and hence that appeal may also be transferred to this division bench so that both appeals could be heard together. However, the learned member had not accepted this submission during the hearing and decided that appeal by Final Order No. 51030 of 2022 dated 31.10.2022. Both sides rely on this order of the learned member in this appeal. Although the confiscation of the goods was never in dispute and although Shri Amit Goel was not a party in the appeal before the learned member, he held that Shri Rajesh Kumar was not a man of sufficient means (based on his income tax returns) and hence concluded that Shri Amit Goel was the real owner of the gold that was confiscated and further went on to set aside the confiscation. As he had set aside the confiscation, he had also set aside the penalty imposed on Shri Rajesh Kumar. 14. Learned authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be relied upon to decide this appeal. We, therefore, reject the reliance on this order by both sides. 20. We now proceed to examine the submissions made by both sides and decide this appeal. Submissions on behalf of the appellant Revenue 21. Shri Rakesh Kumar, learned authorised representative made the following submissions. i. In this case, 20.643 kg gold of foreign origin was seized without any documents to show their licit import from Shop No 7 where Shri Rajesh Kumar (Shop Owner) and Shri Pankaj Kumar Singh (an employee of the Appellant Shri Amit Goel) were present. On further search at Shop No 8 (Owner Rajesh Kumar) adjacent to shop No 7, currency of total value of Rs 6.44 Cr was also recovered. ii. Shri Rajesh Kumar stated that 27 kg gold was sent to him by Shri Amit Goel, through his employee, Shri Pankaj Kumar, of which he had sold 7 kg immediately and sale proceeds are part of the currency the currency found in Shop No. 8 which was seized. He also said that in the past also he had adopted the same modus operandi to sell gold sent by Shri Amit Goel. iii. Shri Pankaj Kumar who had brought the gold also confirmed in his statement that it belonged to Shri Amit Goel. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of DRI and that of Shri Rajesh Kumar by Shri Pankaj Kumar Singh. xi. The statement of Shri Rajesh Kumar on 27.01.2017 also revealed that the employee of Shri Amit Goel had visited the shop 6-7 times from June 2016 up to 14th October 2016. The same has been corroborated from the statements of other Noticee and the employee of Shri Rajesh Kumar. xii. Hon ble Apex Court in the case of Collector of Customs Vs D. Bhhoormull 1983 (13) ELT 1546 held that the Department cannot prove the case with mathematical precision and in all preponderance of probabilities it is categorical and clear that Shri Amit Goel is the mastermind who is a smuggler in the guise of a research Analyst and Chief Investment strategist. xiii. Retraction statement of Shri Pankaj Kumar Singh is an afterthought tutored by Shri Amit Goel and non- cooperation and non- appearance of the other employee Shri Santosh in the investigation is also an important piece of evidence which to be tutored by Shri Amit Goel only. xiv. As per the statement of Shri Pankaj Kumar Singh dated 13.02.2017 the Mobile No 8826957178 issued in the name of his brother Shri Neeraj Kumar Singh was being used by Shri Amit Goel. The same has been corro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he needed to keep track of in his line of business to advise his clients on investments in commodities. vii) Shri Pankaj Kumar s retraction was not belated. In fact, he had given his retraction to the jail authorities much earlier but it had not reached the CMM. Findings 23. We have considered the submissions. The case of the Revenue is that Shri Amit Goel was, indeed, the main player and the owner of the smuggled gold and the sale proceeds of the smuggled gold that were seized. This assertion is based on the following facts and evidences. 24. Shri Goel had not cooperated with the investigation, had not responded to summons, and had not joined it and instead hand, filed a Writ Petition before the High Court and only after it was dismissed did he appear to give his statement. 25. Four of the persons who were directly concerned with the seizure categorically said that Shri Amit Goel was the owner of the gold. Shri Rajesh Kumar from whom the gold was seized said that the gold was sent by Amit Goel and Shri Pankaj Kumar, who was his employee and who had brought it also said that the gold belonged to his employer Shri Amit Goel on whose behest, he had brought the gold to give to Shri R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement 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. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. 32. The statements of the two persons who had not been put through the procedure prescribed under section 138B cannot be relied upon. Learned authorised representative submits that section 138B (1) applies to prosecutions in courts and 138B(2) states these proceedings apply so far as may be to other proceedings and therefore, the procedure need not be followed and it is up to the adjudicating authority to follow it or not. Even if it is not followed, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not do so. 36. This leaves the statement of Shri Rajesh Kumar who was examined and cross examined and there were sufficient contradictions in his statements during cross examination. 37. Searches were conducted at both the residence and office premises of the respondent quite early during the investigation but nothing incriminating was found. 38. Thus, insofar as this appeal is concerned, Revenue s prayer to restore the penalty imposed on Shri Amit Goel by setting aside the impugned order is based on the fact that Shri Goel had called Shri Rajesh Kumar and Shri Pankaj Kumar on that day and based on four statements. In the absence of any evidence to the contrary, the plausible explanation regarding the reasons for the calls must be accepted. Of the four statements, two are not relevant as the procedure followed under section 138B was not followed. Of the remaining two statements, Shri Pankaj Kumar retracted his statement and stood by the retraction during the cross-examination. There was no re-examination by the department to disprove this hostile evidence. This leaves with the statement of Shri Rajesh Kumar who had, during cross-examination, contradicted himself. 39. In our con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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