TMI Blog2001 (7) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Officers found 16 pieces of gold biscuits and 4 pieces of gold strips from the underneath of front seat of the maruti car . Shri Samir Kr. Ray claimed the ownership of the gold in question. On his disclosure one more gold biscuits was recovered from under the mattress of the bed in his bed-room along with Indian currency of Rs. 2,53,525/-. During the course of search of the residential premises of Shri Samir Kumar Ray one Shri Subhas Chandra Saha entered his house. He also was interrogated and 6 pcs. of gold biscuits kept in his rectum was ejected. Shri Saha disclosed that he was to give the said 6 pcs. of gold biscuits to Shri Samir Kumar Ray. As the appellant could not produce any documentary evidence showing legal acquisition of the gold in question, the same along with Maruti Car were seized. The Indian currency was also seized by the officers on a reasonable belief that the same was the sale-proceeds of the smuggled goods. However, the said currency stands released by the impugned order of the Commissioner. 3.2 During interrogation Shri Ray gave self-incriminating statement admitting the gold in question was smuggled goods. Shri Samir Kumar Ray is proprietary of M/s. Bija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. As a result of the said order passed by the C.M.M. the appellant had undergone treatment in the jail custody for the injury inflicted on account of assault. In any case the statement was recorded from the appellant after long hours of detention and as such, the same could not be considered as voluntary statement. He submits that the appellant's defence of having purchased the biscuits from M/s. Mansukhlal T. Bavishi of Mumbai stand duly corroborated by the statement of representative of the said M/s. Mansukhlal T. Bavishi wherein they admitted having sold 21 pcs. of gold bars of foreign origin to the appellant. They had also disclosed the gold biscuit was purchased by them from one Shri Pankaj and they have made full payment to that firm. He submits that baggage receipt was also produced before the officers and there is no allegation about genuineness of the same. He submits that appellant being in the business of gold dealer/goldsmith making ornaments had been dealing in foreign origin gold for which evidences of purchase of foreign origin from other dealers were produced by the appellant. He submits that the Commissioner's reason that his account did not show the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samir Kumar Ray. They had also given the details of the pay order and the cheques given by them to M/s. Pankaj Jewellers, as consideration towards sale of the gold biscuits in question. Bank account statement of M/s. Pankaj Jewellers have been produced and his residential address disclosed. In these circumstances it was not open to the adjudicating authority to conclude that M/s. Pankaj was not available. The baggage receipt of Md. Ismail from whom M/s. Pankaj have bought the goods was also produced before the officers and the same was not found fake or ingenuine. In support of his above argument reliance has been placed on the Tribunal's decisions in the case of R. Saravanaraj v. C.C., Trichi reported in 2000 (117) E.L.T. 595 (Tribunal) = 1999 (35) RLT 185 (CEGAT) and in the case of S.K. Chains v. C.C. (Preventive), Mumbai reported in 2001 (127) E.L.T. 415 (T). 7.Identical arguments have been advanced on behalf of Shri Subhas Chandra Saha, Shri Vinay Kumar C. Zaveri and Shri Mansukhlal T. Bavishi. Shri Subhas Chandra Saha pleaded that no gold was recovered from him and he was picked up by the Customs officers when he was going to Nursing Home. He has been made victim of circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable with us inasmuch as firstly the appellant was under no legal obligation to maintain any records and secondly, the appellants have explained that Shri Samir Kumar Ray landed in Calcutta on 14-10-1995 which was Saturday and 15-10-1995 was Sunday. And thereafter the gold was seized in the morning hour on 16-10-1995, thus giving no opportunity to the appellant to record the same in his business records. We also take note that Revenue has nowhere alleged that the baggage receipt produced by the appellant is not genuine. The fact of non-traceability of Md. Isamil, who imported the gold by itself cannot ipso facto lead to conclusion that the gold was smuggled especially when the appellants have been able to establish the sale of the same by M/s. Pankaj to Shri Mansukhlal T. Bavishi and further sale to the appellant Shri Samir Kumar Ray. In this connection we take into consideration the Tribunal's decision in the case of S.K. Chains reported in 2001 (127) E.L.T. 415 (T) observing as under : "7. Thus, today there exists a very peculiar situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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