9911796707
TMI Blog2024 (3) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Tribunal affirmed the order of the First Appellate Authority. The impugned appeal is filed under Section 130 of the Act, raising the following question of law: - Whether the Appellate Authority on the basis of facts and evidences and circumstances of the case, has completely erred in its findings and came to conclusion overlooking a number of material facts as well as the judgments cited? 2. Dr. K.N.Singh, learned Additional Solicitor General, appearing for the appellant, argued that the contraband was seized from the body of a person travelling in a train from Howrah to Mumbai; the Howrah-Mumbai Mail Express, when the said person was intercepted and searched at Tatanagar Railway Station. On recovery of the contraband, which did not have any supporting documents, the person was brought to Patna where he had given a sworn statement under Section 108 of the Act, which has an evidentiary value. The statement was retracted later on, when the person was granted bail; which is usual in such cases and this does not affect the evidentiary value of the statement, if the statement, at least in some aspects, are substantiated by other material evidence. The story put forth by the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst argued that the interception was not proper and there was no satisfaction entered, which was imperative as per the statutory provision. Tatanagar was not a notified area and the recording of reasons to believe, which is imperative as per the statutory provisions, should also be objective. The statement under Section 108 was under threat and coercion and was detracted at the first opportunity. The statement was made under the custody of the Directorate of Revenue Intelligence (DRI) and later the person who was intercepted was produced before the jurisdictional Magistrate from where he was sent into judicial custody. The witnesses who affixed their signatures to the statement under Section 108, are said to be the witnesses who were present at the time of interception. It is difficult to believe that the very same independent witnesses travelled from Tatanagar to Patna for the purpose of witnessing the statement under Section 108. 6. There is absolutely no evidence that the gold seized was of foreign origin. The proceedings were on a presumption that the gold bars were smuggled into the country from Bangladesh; which presumption arises only from the statement under Section 108. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal. However, while making such observation, it was also opined that the order of the Tribunal, in that case, which essentially referred to the order of the Commissioner, does not give rise to any question of law, since the Commissioner's analysis was extensive. It was also noticed that there was also no question raised challenging the findings of the Tribunal, as perverse(sic-Para-15). 9. In the present case, we have extracted the question of law, which is clearly on the appellate authorities having completely erred in overlooking material facts, the purport of which is perversity in the order passed. Though there is no specific reference to perversity, the general purport of the question framed, of overlooking material facts, is perversity in full regalia. Hence, we are constrained to look into the facts, not in re-appreciation of the same but to understand whether relevant facts were ignored and extraneous considerations were reckoned, in which event, the orders would have to be set aside on the ground of clear perversity. This is why we venture to look into the facts from the very beginning of the case. 10. The first contention raised is of no reasons to believe b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which resulted in quashing of the very seizure notice, without even relegating the petitioner to the adjudicatory procedure. The Division Bench also noticed that the information of the seized nuts, being not of Indian origin, was asserted to be the opinion of some Customs Officers, as recorded in the Panchanama. Neither were the details of such officers mentioned nor was it discernible as to their expertise in finding the nuts to be of foreign origin merely on visual inspection. 12. We are of the opinion that the said decision does not have any application looking at the character of the goods seized and also the manner in which it was done. It is an admitted fact that the intercepted person was carrying gold in a train which commenced from Howrah, where he boarded the train and was intercepted at Tatanagar before it reached its destination at Mumbai. The owner of the goods who is the respondent herein, was subsequently summoned, who had also admitted that the goods were purchased from a third party and had been entrusted with the person who was intercepted; an employee of the owner/respondent. The entrustment was also for transporting it to Kolkata to enable manufacture of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Commissioner (Preventive) in the office of the Principal Commissioner, Central Goods and Service Tax and Central Excise, Tikrapara Dhamtari Road, Raipur by communication dated 02.08.2017, which is produced in the memorandum of appeal at page 76 along with the documents in support of the notice issued, produced at Annexure-A. The identity of the owner of the gold seized from the intercepted person also was revealed from the statement. The statement also admitted the person having boarded Howrah-Mumbai Mail Express, and that he was travelling to Raipur; in the course of which, some persons in civil dress woke him up and introduced themselves as officers of DRI, Patna. They searched his body and during the course of search, the smuggled gold kept hidden and covered inside the pants, was detected. So much of the statement has not been retracted from. 16. The person intercepted had also disclosed the name of the person from whom he had received the gold bars at Kolkata, who had directed him to hand over the same to the respondent, who was his employer. The statement indicated the intercepted person having confessed to his knowledge, that the gold was smuggled from Banglades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with the Act, specifically Sections 46 and 47 read with Section 7 of the Act. There is no escape from this, even if, we fail to reckon the statement of the person intercepted that in his knowledge the gold was smuggled from Bangladesh. We reiterate, at the risk of repetition, that the fact of possession of the gold bars, which was seized by the DRI official from his person and that he was carrying it in the Howrah-Mumbai Mail Express, stands clearly established. Whether it was first taken from Raipur or it was obtained in Kolkata, are irrelevant facts; when looking at the aspect of importation and the validity of seizure, by reason of the belief entertained by the DRI official that the gold bars were not imported in accordance with the provisions of the Act. 20. On the above admitted facts, we have looked at the decision in Ganpati Overseas (supra) and the principles deduced by the learned Judges from the judicial pronouncements in Naresh J. Sukhawani and K.I. Pavunny (both supra). We specifically extract Paragraph-53 from Ganpati Overseas (supra): - "53. Thus, what is deducible from an analysis of the relevant legal provisions and the corresponding judicial pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein, had obtained valid possession through a legal import made by him. 22. At this juncture, we look at the Original and the appellate orders which the respondent seeks to sustain. The order of the Tribunal extracts the reasoning of the First Appellate Authority, which reasoning and further findings by the Tribunal, are challenged as perverse by the appellant herein. The Department placed reliance on the fact that none of the cars owned and used by the noticee Nos. 3 and 4, son and father, who allegedly sold the gold bars to Noticee No. 2, had travelled from Bhilai to Raipur. This is in the context of the specific statement made by Noticee No. 3; a dealer located at Bhilai, that he had delivered the goods to Noticee No. 2; with his business at Ranchi. Investigation revealed that none of the cars, owned by the Noticee Nos. 3 and 4, the numbers of which were supplied to the DRI, crossed the Kharun Toll Plaza. The goldsmith 'Subh', to whom the gold bars were allegedly send for conversion into ornaments, whose mobile number was revealed by the respondent and the person who is alleged to have introduced the Karigar to the owner, one Mukesh Ganatra had both declined to support the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... former of whom was referred to, in the retracted statement, as the person who handed over the smuggled goods. There was no attempt made by the customs authorities to trace out the entire chain of the alleged smuggling of gold. The absence of description of the gold bars in the invoice produced to support the sale and purchase was held to be irrelevant in the libralised economy, post repeal of the Gold Control Act; which does not remain to be a legal requirement. The Tribunal accepted the findings of the First Appellate Authority. 25. We have already referred to the admitted position that the two gold bars recovered were sourced from abroad; which is undisputed. The possession of the person intercepted also is admitted and the ownership is said to be on the respondent in the present appeal. Section 123 (2) of the Act specifically makes it applicable to gold and when gold is seized under the Act, as per sub-section (1) on a reasonable belief that it is smuggled, the burden of proof rests entirely on the person from whom the seizure was made or on such person who claims to be the owner. 26. We have found that the description of the gold bars itself indicate that it is imported. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person by name of Subh Karigar to the respondent. 28. We have also looked at the statements of the Noticee Nos. 2 to 4, as extracted in Annexure-A. Noticee No. 2, the respondent herein, was summoned thrice and the statements were recorded on 04.08.2017, 05.08.2017 and 18.08.2017. The respondent at the first instance, produced the photocopy of the invoice dated 21.07.2017 issued from Saheli Gems and Jewellers Pvt. Ltd. for purchase of 2 kilograms of gold bar valued at Rs.58,80,000/- along with stock details and sale and purchase invoices from January 2014 to January 2017. He also produced the original of the Karigar Issue Slip which was received and signed by the respondent and a faded copy of Letter No.2702/2017 in the letter-head of Sri Adinath Jewellers addressed to Shubh. Both the Karigar slip and letter addressed to Shubh are of no consequence since already it has been found that Shubh did not exist in the manner in which he was portrayed to be; as a Karigar. 29. The invoice produced was of 21.07.2017, before the interception and seizure of the gold bars, but there was nothing produced to indicate payment of any amounts for the gold purchased at any time before the interc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased from Saheli Gems and Jewellers Pvt. Ltd. We cannot but hold that the reliance placed is wholly irrelevant since the two sets of bill books produced requires further evidence to establish the transactions between Saheli Gems and Jewellers and Adinath Jewellers having occurred on the day it is said to have occurred; prior to the interception and seizure, especially since no payment was made for the purchase. Viewed in this context, it is pertinent that the invoice does not contain the description of the gold bar sold, thus, making it impossible to identify the gold sold, to be the very same gold recovered from the person of Noticee No.1. Then again, if the gold recovered, from its physical appearance itself did not disclose its source; probably the invoice would have had a semblance of evidentiary value, even if the payments were made after the seizure of the gold; which discounts the evidentiary value of the invoice and the genuineness of the transaction. 32. As is the present position, the invoice even if found to have established the transactions between Saheli Gems and Jewellers and Adinath Jewellers, it does not discharge the burden of proof insofar as the import havin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
