Decided on July 14,2015

Commissioner Of C. Ex. And S.T., Lucknow Appellant
ANAND KUMAR Respondents

Referred Judgements :-



ASHOK JINDAL,MEMBER (J) - (1.)Revenue is in appeal. The facts of the case as per the Revenue are that on 14 -2 -2012 at 6 pm officers of Customs Unit Khunwa in the presence of two independent witnesses caught a person who was trying to cross the border with a fast pace. He was brought to the Customs office and was searched. During the search of the person two flat pieces of gold were recovered. On enquiry, the person disclosed his name as Om Prakash Verma, resident of Village Uska Raja, Post Office Uska Bazar, Sidhartha Nagar. The officers called his local jeweler and got the gold pieces checked by him who found that the gold recovered from Shr. Om Prakash Verma was of foreign origin. On measurement the weight of gold was found 734.5 gms. The weight of the bigger piece was 485 gms and smaller piece was 249.5 gms. Shri Om Prakash Verma said that he works in the shop of M/s. Abhishek Jewelers, Bank Road, Uska Road, Naugarh, Siddhartha Nagar. He was going to deliver the gold to Shri Ram Lakhan Verma and Shri Prem Kumar of Nepal on the instruction of Shri Babloo, proprietor of the shop. He also told that six months earlier also he delivered the foreign gold to Shri Ram Lakhan Verma after carrying it to Nepal. Shri Om Prakash Verma could not produce any valid document relating to export/import and sale of the recovered gold. Therefore, on the bona fide belief that recovered gold was attempted to be smuggled to Nepal in violation of Sec. 11 read with Foreign Trade (Development and Regulation) Act, 1992. Thereafter, the gold pieces and the pant were seized under Sec. 110 of the Customs Act, 1962. Shri Om Prakash Verma admitted in his statement that he was going to deliver gold to Shri Ram Lakhan Verma and Shri Prem Kumar, resident of Nepal. Again on 15 -2 -2012 he told that he was asked to bring sale paper regarding two gold on record from 4 -2 -2012 but he stated that there is no such document with him and the statement given by him on 4 -2 -2012 is true and correct. But on 18 -2 -2012 Shri Anand Kumar alias Bablu, proprietor of M/s. Abhishek Jewelers, was summoned for 23 -2 -2012 but he did not turn up and a letter was received stating that he is out of station in connection to the business work. Therefore, another summon was issue for 4 -3 -2012. On the said day Shri Anand Kumar alias Bablu appeared and handed over the documents and invoice pertaining to purchase of gold pieces. He stated that he is the owner of M/s. Abhishek Jewelers, Siddhartha Nagar. He also submitted that he purchased gold from registered/unregistered firm/individuals for making jewellery. At the same time he purchased gold/silver and some of the jewellery made by the local artisan and they are given gold bullion/silver bullion to prepare the jewelry. On being asked about the jewelry he told that above gold although used to be of foreign origin but not in form of biscuit and he did not import gold and foreign origin gold imported by importers in India and he used to purchase from businessmen to whom importers sell the imported gold. Since the importer sell the gold in good quantity thus he could not purchase directly from them. He was asked about the gold recovered from Shri Om Prakash Verma. He told that Shri Om Prakash Verma works on the basis of contract for carrying gold to artisans engaged in jewelry making. He admitted that gold recovered from Shri Om Prakash Verma on 14 -2 -2012 belongs to him and that this gold has been purchased from registered businessmen as he was having an order for delivering furnished jewelry to some local people and to complete his commitment he has given gold to Shri Om Prakash Verma to deliver it to local artisan Shri Santosh Kumar and Shri Ved Prakash both resident of Khunwa and Shri Deepak Kumar Verma and Shri Rajkumar Verma both resident of Soharatgarh. He also admitted that this gold pieces recovered from Shri Om Prakash Verma belong to him which have been purchased from registered businessmen. With regard to Shri Ram Lakhan Verma and Shri Prem Kumar, he told that he does not know these persons and the statement given by Shri Om Prakash Verma to say that these impugned gold was to be delivered to these persons were totally incorrect. He further submits that gold is purchased from M/s. Krishna Saraswati Payal Chain Institute and M/s. Krishna Priya Jewelry House, Agra. The invoices were also produced. Thereafter, the artisans namely Shri Ved Prakash, Shri Santosh Kumar, Deepak Kumar Verma and Shri Rajkumar Verma were called who have admitted that they were preparing ornaments out of gold sent by Shri Anand Kumar alias Bablu over the years and since last one year Shri Om Prakash Verma used to come to deliver the gold to prepare ornaments and after preparing ornaments they returned the jewelry to Shri Om Prakash Verma. In these set of facts, a show cause notice was issued to the respondent for confiscation of the gold and imposition of fine and penalty on other persons interrogated. The Adjudicating Authority confiscated the gold and imposed the redemption fine of Rs. 6 Lakhs and personal penalties on Shri Anand Kumar and Shri Om Prakash Verma, the respondents. The ld. Commissioner (A) set aside the adjudication order. Aggrieved from the said order revenue is before me.
(2.)Shri Davinder Singh, ld. AR, appeared and submits that the ld. Commissioner (A) has held that the respondents have discharged their burden of ownership but he ignored that the case of the department was that recovered gold was being illegally exported to Nepal in contravention of provision of Customs Act, 1962 read with relevant provisions of Foreign Trade Policy. He further submitted that ld. Commissioner (A) felt an error doubting the panchnama in view of the cross examination of one of the witnesses. He further submitted that the ld. Commissioner (A) felt an error to allege that statement of Shri Om Prakash Verma was recorded under coercion and pressure and it was not a voluntary statement. In fact, the statement was voluntary and same has been affirmed on 15 -2 -2012 and there was no injury on him he was medically fine. To support his contention he relied on the decision in the case of Jasmat Parshottam Ganesh v/s. State of Gujarat - : 1995 (76) E.L.T. 548 (Guj.), Akai Impex Ltd. v/s. CCE, Mumbai - : 2003 (156) E.L.T. 700 (Tri. -Mumbai). He further relied on the decision in the case of S.G. Rajadhyakshya v/s. Leela Daulatram Uttamchandani - : 1991 (51) E.L.T. 3 (Bombay), Sidhharth Shankar Roy v/s. CCE, Mumbai - : 2013 (291) E.L.T. 244 (Tri. -Mumbai) and Ashraf Puliyulla Parambil v/s. CC (Airport), Chennai -, 2007 (213) E.L.T. 555 (Tri. -Chennai). He further submitted that ld. Commissioner (A) has felt an error to rely on the statements of goldsmith/artisan. He further submitted that ld. Commissioner (A) failed to appreciate the fact that the recovery of primary gold on Indo -Nepal Border and his attempt to cross border are proven fact which are never disputed. He further submitted that ld. Commissioner (A) has completely ignored the apparent and undeniable fact that as the shipping Bill is not filed as required under Sec. 50 of the Act. Failure also attracts the deliberate violation of pre -condition imposed for export under Sec. 46 of the Act. Therefore, he submitted that impugned orders are set aside. Appeals filed by the Revenue are allowed.
(3.)On the other hand. Ld. Counsel appearing on behalf of the respondent submits that initially the burden of proof was on Shri Om Prakash Verma for procurement of gold and same has been discharged by Shri Anand Kumar alias Bablu by producing the invoices of gold purchase by him from M/s. Krishna Saraswati Payal Chain Institute and Krishna Priya Jewellery house. The invoices were verified and found to be genuine. Therefore, primary onus has been discharged by the respondents. Moreover, the fact was that Shri Om Prakash Verma visited the artisans on 14 -2 -2012 in the morning when they were not available in their shop. He was asked to come in the afternoon. This fact has been affirmed by the statement of the artisan and the statements of the artisans have not been controverted by any cogent evidence. Moreover, the main reliance of the revenue is that Shri Om Prakash Verma has made a statement on 14 -2 -2012 which has been affirmed by 15 -2 -2012 and same was retracted after a gap of time and same cannot be discarded. To support his contention ld. AR has relied on various case laws but in the absence of any corroborative evidence of the statement recorded, the revenue's case does not stand in the light of the decision of The Pullangoda Rubber Produce Co. Ltd. v/s. State of Kerala - : 1972 (4) SCC 683, Vinod Solanki v/s. UOI - : 2009 (233) E.L.T. 157 (S.C.) : 2009 (13) S.T.R. 337 (S.C.) and M/s. Dhingra Metal Works v/s. CIT - . She also submitted that veracity of the panchnama was doubtful as considered by the ld. Commissioner (A) in the impugned order wherein in the cross examination of Shri Madan Tiwari one of the panchas revealed the true facts. Therefore, the impugned order is to be upheld.

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