PRAGNESH R. CHOKSI Vs. COMMISSIONER OF CUSTOMS
LAWS(CE)-2015-8-2
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on August 05,2015

Pragnesh R. Choksi Appellant
VERSUS
COMMISSIONER OF CUSTOMS Respondents




JUDGEMENT

H.K.THAKUR,MEMBER (T) - (1.)THIS appeal has been filed by the Appellant against OIO No. 1/COMMR./OA/2007, dt. 01.10.2009, passed by Commissioner of Customs, Ahmedabad as the Original Adjudicating Authority. This OIO dt. 12.01.2009, has been passed by the Adjudicating authority, as per the specific remand directions of CESTAT under Order No. A/592 -596/WZB/2006/CSTB/C II, dt. 30.06.2006, under which 40 TT Gold Bars (valued at Rs. 19,70,000.00) were absolutely confiscated under Section 111(d) of the Customs Act, 1962 and a penalty of Rs. 1,50,000.00 was imposed upon Shri Pragnesh R. Choksi, Proprietor of M/s. Shreya Traders, Ahmedabad.
(2.)Shri Mayur Shroff (Advocate) appearing on behalf of the Appellant argued that on 08.04.1999, Officers of Customs intercepted two persons Shri Vishnubhai Ishwardas Patel and Shri Madhusudan Jayantilal Raval of M/s. Vishnu Ambalal, Angadia at Ahmedabad Railway Station, on the basis of specific information when they were about to board the train for Mumbai. That 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons. That out of total foreign marked gold biscuits, 40 TT gold bars of PAMP SUISEE markings were found to be accompanied by a paper on which M/s. Sreya Traders/M/s Krupa Traders M/s. Krupa Ornaments was written. Statement of the intercepted person, who was an employee of M/s. Vishnubhai Ambalal & Co., was recorded to the effect that the said parcel was collected by him from M/s. Krupa Ornaments. Statement of Shri Pragnesh R. Choksi was recorded on 09.04.1999 in which he denied the ownership of the 40 TT Bars of PAMP SUISEE Mark but stated that all the transactions of his firm were being carried out by one Shri Dilipbhai P. Vyas of M/s. Krupa Ornaments and his elder brother Shri Deepakbhai P. Vyas of M/s. Krupa Traders. That Shri Pragnesh R. Choksi also stated that the paper under his firm's name, in which the gold bars were wrapped, was neither written by him nor signed by him. Later by a letter dt. 12.04.1999, Shri Pragnesh R. Choksi retracted the statement dt. 09.04.1999 and claimed ownership of the 40 seized gold bars and contended that the same were purchased by him from M/s. Amrapali Industries Ltd. vide Bill No. G/254/99, dt. 08.04.1999. That Adjudicating authority under his first OIO No. 30/COMMR/2000, dt. 29.12.2000 did not accept the claim of the Appellant and absolutely confiscated the seized gold bars. That this Bench vide Order dt. 30.06.2006 remanded the case back to the Adjudicating authority with the specific direction that Appellant's claim should have been further examined and investigated at the Amrapali's end instead of rejecting the same at the threshold itself. That remand proceedings ordered by the Bench were only with respect to authenticity of Bill No. G/254/99 DT. 08.04.1999 which has been confirmed by the supplier of gold bars M/s. Amrapali Industries Ltd. It was the case of the learned Advocate that Adjudicating authority got the matter investigated from an Additional Commissioner and the facts which came out during investigation confirmed the purchase of seized gold bars by the Appellant but Adjudicating authority by improper construction of facts arrived at a wrong conclusion that the bill of M/s. Amrapali Industries Ltd. is created only to cover the seized gold bars. Learned Advocate made the Bench go through the statements of various persons of M/s. Amrapali Industries Ltd, recorded the cross examination of Shri S.T. Gurusahani, Superintendent (Investigating Officer), the report of Additional Commissioner etc to argue that 40 seized gold bars were purchased from M/s. Amrapali Industries Ltd. That there is no other claimant of the said goods.
2.1 Learned Advocate also made the Bench go through the statement dt. 26.05.1999 of Shri Deepakbhai P. Vyas, Proprietor of M/s. Krupa Traders, in which he stated that gold bars were delivered to the Angadia by Shri Pragnesh and that he has nothing to do with the seized 40 TT gold bars. He also made the Bench go through cross examination of Shri S.T. Gurusahani held on 16.06.2000 to bring home the point that M/s. Amrapali Industries Ltd. in fact purchased gold bars of the same mark from a recognized bank as per their order dt. 08.04.1999.

2.2 Learned Advocate relied upon the following case laws to argue that the seized goods were properly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of the Customs Act, 1962: -

i) S.K. Chairs Vs. CC (Prev.) Mumbai [ : 2001 (127) ELT 415 (Tri -Mum)]

ii) CC (P) W.B. Vs. Golak Chandra Kamila [2006 (205) ELT 665 (Tri -Cal.)]

iii) Rasilaben H. Rathod Vs. CC Ahmedabad [ : 2008 (226) ELT 641 (Tri -Ahmd)]

(3.)SHRI Govind Jha (A.R.) appearing on behalf of the Revenue argued that Appellant in the very first statement did not claim the ownership of the seized gold bars. That as per Apex Court's order in the case of Surjeet Singh Chhabra Vs. UOI [ : 1997 (89) ELT 646 (S.C.)] to argue that confession given is an admissible evidence. Learned A.R. made the Bench go through Para 3 of this case law. He also relied upon the following case laws of Apex Court to argue that an admission made by the Appellant need not be proved as there is no claim of first statement being recorded under coercion or duress: -
i) CCE Madras Vs. Systems & Components Pvt. Ltd. [ : 2004 (165) ELT 136 (S.C.)]

ii) CCE Mumbai Vs. M/s. Kalvert Foods India Pvt. Ltd. [2001 -TIOL -76 -SC -CX]

That Adjudicating authority has given detailed reasons in Pages 33.5, 35, 38, & 40 of the OIO dt. 12.01.2007 as to why claim of ownership of the seized goods of the Appellant was not accepted.

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