TMI Blog2001 (11) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign gold bars with his friend Sri Umesh Kumar Tiwari. The appellant on return to Calcutta on 15-5-2000 learnt that the 34 gold bars kept with Sri Umesh Kumar Tiwari had been seized by the Customs Officials and Sri Umesh Kumar Tiwari was arrested and was in jail custody. The appellant claimed with the Commissioner of Customs (Preventive) Calcutta, foreign gold bars on 16-5-2000, enclosing therewith the copies of the cash/credit memos. 2. Statements were recorded from the appellant and from Sh. Lalji Bhai Kanji Bhai Soni Proprietor of the firm at Ahmedabad and thereafter show cause notice was issued proposing confiscation of the gold and foreign currency under seizure as effected at the residence of Sh. Tiwari. The ld. Commissioner (Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a valid and acceptable evidence. Further, it is settled principle of law that no adverse conclusion can be drawn only on the basis of retracted statement of co-accused unless such statement is further corroborated by independent evidence. In this particular case there is no independent evidence showing that such gold bars were procured by Shri Dubey through unauthorised means. It is, therefore, difficult to place reliance only on the statement of Shri Umesh Kr. Tiwari........" "......I have examined very carefully the purchase and sale made by the said firm during the period from 1-4-2000 onwards. I find the closing balance of gold bars available with the said firm was 92 as on 1-4-2000. Thereafter the said firm procured quite a number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from Shri Umesh Kumar Tiwari who in his initial deposition had confessed about Shri Giridhari Dubey was engaged in the purchase and sale of smuggled gold, keeping such gold in his (Tiwari's) premises on earlier occasions also. Such emphatic statements of Sh. Tiwari were found by Commissioner to confirm the view that the said 32 pcs. bars were procured by Shri Giridhari Dubey from illegal source and on their recovery by Customs, an attempt to cover up the transaction had been made by presenting purchase documents issuing purchase of 32 bars from Ahmedabad. His considering the fact of recovery of U.S. Dollar and B.D. Taka from the possession of Shri Tiwari as a pointer to establish that the transaction of gold was totally unauthorised an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds as arrived at by him when in commercial transactions gold bar brands are not considered relevant. Commissioner cannot introduce the same. In any case, if M/s. Lalji Bhai Kanji Bhai Soni cannot account for the brands the buyer i.e. Sh. Giridhari Dubey cannot be liable to a penalty and the supplier be discharged. Either the documents which admitted do not show the brand marking of gold, are covering sale/purchase transaction of all the 17 bars as shown therein i.e. 34 bars of foreign marked gold on two documents or they do not cover the transaction. When the document is being accepted by the adjudicator for covering part of the gold under seizure and his coming to a finding that Shri Umesh Kr. Tiwari's statement are not reliable then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the effects of the liberalized policy as regards import and dealing in gold and thereafter concluded that that onus as placed under Section 123 was discharged in the facts of that case. We would also considering the onus under Section 123 has been discharged in the facts of this case by the appellants. If the Revenue wants that the gold dealers indulging in sale and purchase of foreign marked gold in India, should indicate the brand names and that discharge under Section 123 shall be only with respect to each brand then foreign marked gold should have been declared as one of the items under Chapter IVA of the Customs Act. We find that no such notification of placing foreign marked gold exists. Therefore the confiscation of the foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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