Commissioner of Customs Vs Bajrang Ingole (CESTAT Kolkata)
CESTAT Kolkata held that impugned gold cannot be seized u/s 110 of the Customs Act, 1962 as it is a case of town seizure and revenue has failed to prove that gold in question is smuggled one. Accordingly, gold not liable for confiscation.
Facts-
Based upon specific information, the officers intercepted the respondent No.1 on 12.12.2018 along with 1 kg Gold Bar valued at Rs.30,50,000/- and one small size pocket diary being seized from his personal possession vide seizure case dated 12.12.2018.
The so seized gold was examined by M/s.A.B. Kundu Jewellers, an approved valuer, who issued certificate that the recovered yellow metal is made of 24 Karat Gold weighting 1000.000 Grams valued at Rs.30,50,000/- at the prevailing rate on 12.12.2018.
Notably, the revenue is in appeal against the impugned order, wherein the Commissioner(Appeals) exonerated the appellants and held that the gold in question is not liable for confiscation.
Conclusion-
Held that it is a case of town seizure. The purity of gold is 99.5% and having no embossing of foreign mark, in that circumstances, revenue has failed to prove reasonable belief that being the gold in question is smuggled one. In the absence of that the impugned gold cannot be seized under Section 110 of the Customs Act, 1962 and therefore the gold in question is not liable for confiscation and no penalty is imposable on the appellant.
FULL TEXT OF THE CESTAT KOLKATA ORDER
Revenue is in appeal against the impugned order, wherein the Ld.Commissioner(Appeals) exonerated the appellants and held that the gold in question is not liable for confiscation.
2. The facts of the case are that, based upon specific information, the officers of P&I Branch, CC(P), W.B. intercepted the respondent No.1 in Burtolla Street, Burrabazar, Kolakta-700007 on 12.12.2018 along with 1 kg Gold Bar valued at Rs.30,50,000/- and one small size pocket diary being seized from his personal possession vide seizure case 16/IMP/CL/GOLD/P&I/CC(P)/WB/2017-18 dated 12.12.2018.
3. The so seized gold was examined by M/s.A.B. Kundu Jewellers, a approved valuer, who issued certificate that the recovered yellow metal is made of 24 Karat Gold weighting 1000.000 Grams valued at Rs.30,50,000/- at the prevailing rate on 12.12.2018.
4. The representative samples drawn from the seized gold were forwarded to the Chemical Laboratory of Custom House, Kolkata to ascertain the Nature, Composition & Purity of the gold vide Test Memo dated 14.02.2018.
5. In the statement so tendered by the said respondent No.1, it was interalia stated that he is engaged in facilitating melting of 10 Tola Bars believed to be gold of foreign origin just to hoodwink the department and to avoid himself being caught by the department. Subsequently, the statement was again recorded on 13.02.2018 when the earlier statement so tendered was repeated and reiterated before the authority However, as appear from the records of the present case, the said statement has been retracted by the respondent No.1 vide letter dated 15.02.2018 before the office of the Superintendent of Customs. In the said letter, the respondent No.1 had stated the earlier statement so recorded during his custody was not at all voluntary in nature, since he was made to write statement as per dictation of the officials. It was stated therein that he was instructed by one Sri Ramesh Disley to carry the seized gold for the purpose of testing purity and the seized gold bar was melted into Bar form from small pieces gold bar and the seized note book that was seized by the officials was got by him from roadside. Further, Summons were also issued upon the respondent herein for appearance on 26.02.2018, which was replied by the respondent vide letter dated 05.03.2018, whereof it was stated since the said Summons was received by him on 01.03.2018, he could not attend the same. Furthermore, Summon was again issued but the same was returned as not being delivered.
6. Further, the respondent No.2 i.e. Sri Sachin Gupta, Director of M/s. Akriti Gupta Jewellers Pvt. Ltd., Kolkata vide letter dated 16.02.2018 submitted before the office of the Superintendent of Customs, whereof, it was stated that the gold belongs to the Company M/s. Akrity Jewellers (P) Ltd. and he being in the capacity of Director had claimed the so-seized gold. It was stated that the seized gold bar was procured by him by melting 18 small pieces of gold into a single gold bar. It was also stated that the 18 pieces gold were given by him to Sri Ramesh Disley to melt it and to form it into a single piece. The so seized gold bar was given by Sri Ramesh Disley to Sri Bajrang Ingole to deliver it to the respondent No.2 and on the way, it was intercepted by the P&I Branch. In support of his claim, he had submitted Issue Voucher, Item Register reflecting possession of gold on 1129.9842 grams and purchase viz Tax Invoices Nos.1890/17-18(M/s. Maa Ambey Jewellers) dated 07.02.2018 of 827.630 grams, Tax Invoices Nos.1940/17-18 (M/s. Maa Ambey Jewellers) dated 12.02.2018 of 583.600 grams & Tax Invoices Nos.1619/17-18 (M/s. Maa Ambey Jewellers) dated 05.01.2018 of 500 grams.
7. In course of investigation, Sri Ramesh Disley’s statement was recorded in terms of Section 108 of the Customs Act, 1962 when it was duly stated by him that he is the proprietor of M/s. J.B. Silver & Gold since 05.11.2017. His business is to look after melting of gold and It had been confirmed by the said Sri Disley that he had received 18 small pieces of gold bars from Sri Sachin Gupta of Akriti Jewellers (P) Ltd. vide Issue Voucher No.61 dated 12.12.2018 and he had handed over the seized gold bar to his employee (Respondent No.1) for the purpose of handling over to Sri Sachin Gupta of M/s. Akriti Jewellers (P) Ltd.
8. Further investigation was also caused with M/s. Maa Ambey Jewellers when it is revealed that the Tax Invoices submitted by the Respondent No.2 are genuine and payment was also made for the goods being sold to the respondent No.2.
9. However, the aforesaid Show Cause Notice VIII(10)20/IMP/CL/P&I/CC(P)/WHB/17-18/974-975 dated 07.08.2018 was issued upon the lower authority to the respondents herein proposing confiscation of seized goods i.e. one piece of gold bar having total weight of 1000.00 grams valued at Rs.30,50,000/- in terms of Section 111(b) & (d) of the Customs Act, 1962 and imposition of penalties in terms of Section 112(b)(i) of the Customs Act, 1962 on both the appellants for the alleged act of smuggling of origin gold.
10. The adjudicating authority absolutely confiscated the seized gold and imposed penalty on both the respondents. The said order was challenged by the respondents before the Ld. Commissioner(Appeals), who after examining the defense reply filed by the respondents dropped the charges against the respondents and penalties imposed on the respondents were also set aside. Against the said order, revenue is before me.
11. The Ld.AR for the department submitted as under :-
(a) Shri Sachin Gupta submitted a letter dated 16.02.2018 to the department claiming ownership of the gold and enclosed (i) Trade Licence (ii) Issue Voucher No.61 dated 12.02.2018 (iii) Stock details for the month Jan. 2018 to Feb. 2018 and (iv) Three Purchase invoices from Maa Ambey Jewellers for the month of January 2018 to February 2018.
(b) As per enclosed copy of Stock Register (Stock details for: Our Stock with us & Third party) for the period 0 1.02.2018 upto 02.2018 as submitted by Sachin Gupta vide his letter dated 16.02.2018, it was seen that the purchase of three gold bars (purity not mentioned) on different dates from Maa Ambey Jewellers vide three invoices are clearly reflected and the transactions were found to be genuine.
(c) As on date of seizure i.e. 12.02.2018, the Item Register clearly reflects the Closing quantity, Rate and Value of gold as 9842 gms., 2890.65 and Rs.32,66,391.69 respectively. This document was submitted by Sri Sachin Gupta on 16.02.2018 himself, on his own volition, voluntarily, for claiming the seized gold. Further, in his said letter, he had stated that 18 pieces have been procured from daily transaction of gold of 99.5 purity and handed over to Ramesh Disale for melting to form a single piece so that it could be sold in bar form. However, no inclusion or mention of such 18 pieces of gold could be found in the copy of the Stock Register (closing balance as on 12.02.2018) submitted by Sachin Gupta on 16.02.2018
Hence, there could be no ambiguity whatsoever that as on 12.02.2018 (date of seizure), the Closing quantity, Rate and Value of gold was 1129.9842 gms., Rs.2890.65 and Rs.32,66,39 1.69 respectively with M/s. Akrity Gupta Jewellers.
(d) As per Para 3.7 of Order-in-Original Sachin Gupta again submitted a reminder letter dated 06.03.20 18 praying for release of the seized goods since not returning of the goods is creating severe crunch on him.
As per Para 3.10 of Order-in-Original, Sachin Gupta again submitted a reminder letter dated 15.03.2018 requesting the department to take necessary steps towards releasing the gold and offered his willingness to furnish requisite Bond and Bank Guarantee towards provisional release of the seized gold.
(e) It is, therefore absolutely explicit and unambiguous that Shri Sachin Gupta, subsequent to his letter dated 16.02.2018, DID NOT STATE in any of his said letters dated 06.03.2018 and 15.03.2018 to the department that –
(i) there was any change (inclusion or exclusion of any stock of gold) in the copy of stock register showing closing balance as on 12.02.2018 as submitted voluntarily by him with his letter dated 16.02.2018, staking claim on the seized gold.
(ii) there was any change in the copy of the voucher no.00061 dated 12.02.2018 (purportedly the basis of issuing 18 pcs. Gold of 99.5 purity from daily transaction to Ramesh Disale) which was submitted to the department by him on 16.02.20 18, staking claim on the seized gold.
(f) In obedience to the Order dated 12.06.2023 passed by this Tribunal, the Ld. Advocate of the Respondent submitted a letter on 22.06.2023 along with enclosures. It can be observed that there is gross discrepancy between the documents submitted by Shri Sachin Gupta along with his letter dated 16.02.2018 vis-à-vis the documents submitted by the Ld. Advocate on behalf of the respondent on 22.06.2023, which are enumerated hereunder:-
(i) In the copy of Item Register enclosed with the letter on 22.06.2018 it can be seen that on 12.02.2018 (i.e. date of seizure), there is an additional entry (outwards) shown in the name of Ramesh Disale for 1000 gms gold, the closing balance of gold I sshown as 129.9842 gms., no rate is shown and the value is shown as 3,75,739.16.
This is totally at varience from the original records (as mentioned at “c” above) and points to clear manipulation of records, an insertion which is totally different from the originally submitted document, and has been done in order to legitimize/show supply of 1000 gms. gold to Ramesh Disale (Stock Journal I.V. 076/17- 18). There has been an addition of this Vch No. against the name of Ramesh Disale for 1000 gms. Therefore, in view of the grounds as mentioned as at “e” above, it is abundantly clear and explicitly supportive of the contention that the documents now submitted on 22.06.2023 before this Tribunal is a clear manipulation of records to justify an act of smuggling.
(ii) In the photocopy produced by Mr. Sachin Gupta on 16.02.2018 of the voucher no.00061 dated 12.02.2018 for 1000 gms gold to Ramesh Disale (Smith Issue Voucher) the typed description of goods SILVER was replaced with Gold in handwriting. No other insertion/entry is seen.
In the document submitted before this Tribunal on 22.06.2023, it can be seen that there is an insertion in the voucher – i.e. 0076 just before 00061 and this insertion has been deliberately an dmaliciously made to legitimize the supply of 1000 gms. gold to Ramesh Disale (Stock Journal I.V. 076/17-18). This is again totally at variance from the documents originally submitted by Mr. Sachin Gupta on 16.02.2018 to claim the gold. Therefore, in view of the grounds as mentioned as at “e” above, it is abundantly clear and explicitly supportive of the contention that the documents now submitted on 22.06.2023 before this Tribunal is a clear manipulation of records to justify an act of smuggling.
Therefore, it is crystal clear that the respondents have not been able to comply with the directions issued at Para 6 & 7 of the Order dated 12.06.2023 of this Tribunal, not submitted the original documents and instead submitted manipulated/fabricated documents. It is humbly prayed that this issue may kindly be looked into.
12. He also relied on the following decisions:-
