Custom, Excise & Service Tax Tribunal
Patna(Prev) vs Sri Sonu Jal on 28 March, 2022
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH : KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Miscellaneous Application No.76401 of 2019 (Stay)
(On behalf of Appellant)
And
Customs Appeal No.76612 of 2019
(Arising out of Order-in-AppealNo.01-04/CUS/PAT/Appeal/2019-20 dated11.04.2019
passed by Commissioner(Appeals) of Central GST & CX, Patna.)
Commissioner of Customs (Preventive), Patna
(5th Floor, Central Revenue Building, Birchand Patel Path, Patna-800001.)
...Appellant
VERSUS
Sri Sonu Jal
.....Respondent
(S/o Late Shankar Jal, Near MarvadiKabristan, Veerbhadra Nagar, Raipur, Chhattisgarh-492001.) WITH
(i) Customs Miscellaneous Application No.76402 of 2019 (Stay) AND Customs Appeal No.76614 of 2019 (Commissioner of Customs (Preventive), Patna Vs. Sri RajendraSethiya); (ii) Customs Miscellaneous Application No.76403 of 2019 (Stay) AND Customs Appeal No.76615 of 2019 (Commissioner of Customs (Preventive), Patna Vs. Sri RajendraJain); (iii) Customs Miscellaneous Application No.76404 of 2019 (Stay) AND Customs Appeal No.76616 of 2019 (Commissioner of Customs (Preventive), Patna Vs. Sri Manoj Kumar Jain);
(Arising out of Order-in-Appeal No.01-04/CUS/PAT/Appeal/2019-20 dated 11.04.2019 passed by Commissioner(Appeals) of Central GST & CX, Patna.) APPEARANCE Shri M.P.Toppo for the Appellant /Revenue Shri N.K.Chowdhury, Advocate for the Respondent (s) CORAM:HON'BLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) HON'BLE SHRI P.ANJANI KUMAR, MEMBER(TECHNICAL) MISCELLANEOUS ORDER NO. 75066-75069/2022 FINAL ORDER NO. 75164-75167/2022 2 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 DATE OF HEARING : 8 December 2021 DATE OF DECISION: 28 March 2022 P. ANJANI KUMAR :
The officers of DRI, Patna, On the basis of specific information received apprehended a person by name Shri Sonu Jal from Train No.12810, Howrah-Mumbai Mail Express at Tatanagar. Two gold bars having the description "Valcambi Suisse 1 kg Gold 995.0 CHI Essayeur Foundeur" were found and seized on 24.07.2017. Shri Sonu Jal in his statement dated 24.07.2017 submitted that the gold belongs to Shri Rajendra Sethiya of Shri Adinath Jewelers, Raipur where he worked;
he received the gold from a person by name, Shri Sonu at Sonapatti, Baabazar, Kolkata and was carrying the same to handover to Shri Rajendra Sethiya. Shri Rajendra Sethiya in his statement dated 04.08.2017 and 05.08.2017 claimed the ownership of the gold and submitted documents like photocopy of invoices No.5135 dated 21.07.2017 issued by M/s Saheli Gems and Jewelers Private Limited, Bhillai at a value of Rs.58,50,000/-; Karigar issued slip dated 22.07.2017 issued to Shubh, Kolkata and a copy of letter dated 22.07.2017 on the letterhead of Shri Adinath Jewelers and signed by Noticee No.2. On completion of the investigation, SCN dated 22.01.2018 along with a Corrigendum dated 24.05.2018 was issued to
(i) Shri Sonu Jal, Raipur (ii) Shri RajendraSethiya, Raipur (iii) Shri Manoj Kumar Jain, Bhilai (iv) Shri Rajendra Jain, Bhilai proposing confiscation of gold and imposition of penalties.3
Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019
2. The Additional Commissioner, Patna, vide Order dated 20.11.2018 has absolutely confiscated the seized gold and imposed penalties on various Noticees. On an appeal filed by the Appellants, learned Commissioner (Appeals) vide Order dated 11.04.2019 has set aside the Order-in-Original and allowed the appeals of all the four Noticees. The Department has filed four appeals against the Order-in-
Appeal on the following grounds of appeal along with miscellaneous applications for the stay of the operation of the impugned order. The appeals and miscellaneous applications, which are listed below, are taken up for consideration together.
Appeal No. Stay Petition No. Respondent Penalty C/76612/2019 C/M/Stay/76401/ 2019 Shri Sonu Jal 5,00,000/- C/76614/2019 C/M/Stay/76402/ 2019 Shri 20,00,000/-Plus RajendraSethiy 2,00,000/-
a C/76615/2019 C/M/Stay/76403/ 2019 Shri Rajendra 10,00,000/- Plus Jain 2,00,000/-
C/76616/2019 C/M/Stay/76404/ 2019 Shri Manoj 10,00,000/- Plus Kumar Jain 2,00,000/-
3. The grounds of appeal of the Department are as under.
(i) Learned Appellate Authority erred in finding that the entire case of the Department spins around the confessional statement of Shri Sonu Jal of 24.07.2017; Department heavily relied upon evidences that none of the cars claimed to have been used by the appellants number 3 & 4 for transport of the said gold from Bhilai to Raipur for the sale to Shri Rajendra Sethiya crossed "Kharun Toll Plaza" and a text message sent from the Mobile Number 9827191518 of Shri Rajendra Sethiya to Mobile Number 8100881286 of Shri Sonu Jal of Kolkata who is alleged to the supplier of gold bars.
4Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019
(ii) Learned Appellate Authority has overlooked the number of other facts, circumstantial and corroborative evidences; the fact that Shri Sonu Jal could not produce any licit/valid documents in support of the gold he carried is lost right of by the authority.
(iii) Learned Appellate Authority mentions that Shri Sonu Jal retracted his statement vide "Bandi Aawedan Patra" No.5845 dated 27.07.2017 submitted before Special Judge, Economic Offence, Patna while submitting that his statement was recorded under duress; the Department submits that DRI, Patna who investigated the case were not aware of any such "Aawedan Patra" and Hon'ble Court has not given any direction pursuant to the submissions of the "Aawedan Patra"; such retraction has no locus standi in view of the Hon'ble Supreme Court's decision in the case of Naresh J. Sukhawani Vs. UOI, 1996 (83) ELT 258 (SC); Shri Sonu Jal did not complain of any duress when he was produced before the Special Judge.
(iv) Learned Appellate Authority erred in his findings that the so called ShubhKarigar slip dated 22.07.2017 purchase slip dated 21.01.2017 and the letter dated 22.07.2017 were attached with the "Bandi Aawedan Patra"; the Bail order by the Judge of Economic Offences Court does not mention any such documents.
(v) The statement of Shri Sonu Jal can be relied upon as Shri Rajendra Sethiya failed to establish that the seized gold bars were legally procured by him; Hon'ble Supreme Court held in the case of Surjeet Singh Chabra Vs UOI, 1997 (84) ELT 646 (SC) that a 5 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 statement made before Customs officers though retracted within six days is an admissible evidence.
(vi) There are contradictions in the statements of Shri Rajendra Sethiya and Shri Manoj Kumar Jain; Shri Manoj Kumar Jain could not produce daily stock details from 01.04.2017 to 11.09.2017; though he submitted the same on 12.09.2017; non-production of stock details as and when required indicates that the same has been manipulated; as per the Tower location records, Shri Manoj Kumar Jain was in Bhillai only on the material day; Toll records at Kharoon did not indicate that any of the cars belonging to Shri RajendraSethiya have passed the road or transferred travelled on that road on 21.07.2017; the payments details for the gold alleged to have been produced on 21.07.2017 have been manipulated after the seizure of gold; This was the first business transaction between them that too on credit for which no credit note was issued. They rely upon the following case laws:
(i) Ramesh Chandra Vs State of West Bengal, AIR 1970 SC 940 (2).
(ii) K I Pavunny Vs Assistant Collector Headquarters, Cochin, 1997 (90) ELT 241.
(iii) NandkishoreSomani Vs CC (Prev.), West Bengal, 2011 (269) ELT 64.
(iv) Gunavantrai Seth Vs CCE & C, Bhubneshwar-I, 2005 (191) ELT 380 (Tri. Kolkata).
(v) UOI & Others Vs Rajendra Prabhu & another, 2001 (4) SCC
472. 6
Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019
4. Learned Advocate for the Respondents submits that learned Appellate Authority has correctly considered all the facts and circumstances of the case and has arrived at conclusions in a legal logical manner; learned Adjudicating Authority has given elaborate findings on each of the issues raised in the SCN and the Order-in-
Original and has given clear cut findings on the various issues raised therein. He submits that there is no provision for Stay and Tribunal has no power to grant Stay and he relies upon the following cases:
(i) Order No.77522-77526/2019 in Commissioner of Customs (Prev.) Patna Vs Shri Hari Om Verma& Others.
(ii) Parksons Packaging Ltd. Vs CC (Import), ACC, Sahar, Mumbai- 2015 (326) ELT 177 (Tri. Mumbai).
(iii) Commissioner of Central Tax, Guntur Vs Cholayil Private Limited, 2019 (28) GSTL 469 (Tri. Hyderabad).
5. Heard both sides and perused the records of the case.
6. Brief issue that requires consideration of the Bench in the matter is to decide whether learned Adjudicating Authority was correct in holding that sufficient evidence was not produced by the Department to justify upholding of the confiscation of gold recovered from Shri Sonu Jal on 24.07.2017 in the train at Tatanagar and whether penalties on various appellants are imposable.
7. We find that on various issues raised therein, it will be useful to extract the relevant Paragraphs of findings by Adjudicating Authority.
We do so as follows:
7Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 " 9.The case of the Department is that the said gold bars are of foreign origin marked with inscription "Valcambi Suisse (995) CHI Essayeur Founder" and the entire case of the Department spins around on the confessional statement of Shri Sonu Jal dated 24.07.2017 and the web of evidences gathered by the Department on post seizure investigations made by them. I find that the Department have heavily relied on the evidence that none of the cars claimed to have been used by the appellants number 3 and 4 in transporting the said gold bars from Bhilai to Raipur for sale of the said gold bars to Shri Rajendra Sethiya, the appellant number 2 crossed the "Kharun Toll Plaza" and thereby the said sale is an afterthought to cover smuggling of gold and also on a text message sent from the mobile number 9827191518 of Shri Rajendra Sethiya to the mobile number 8100881286 of Shri Sonu of Kolkata alleged to be the supplier of the said smuggled gold bars. The Department has also relied upon the statement of Shri Soham Verma, the proprietor of M/s Subh wherein he has stated that he did not know Shri Rajendra Sethiya and Shri MukeshGanatra who is known to Shri Sethiya. The adjudicating authority discarded all the points raised by the appellants and relied upon the evidences cobbled together by the Department to hold that the appellants have failed to discharge the burden of proof cast upon them under section 123 of the Customs Act, 1962 that the said gold bars were not smuggled into India without payment of duty and were not liable to confiscation.
10. I find that on the eventful day of 24.07.2017 Shri Sonu Jal was intercepted by the officers of DRI, Patna with two gold bars in Howrah Mumbai Mail without cover of any valid documents, as alleged in the impugned notice. Thereafter, Shri Sonu Jal was de-
boarded at Tatanagar Railway Station and he was moved from Jamshedpur to the office of DRI, Patna for detailed examination for the reasons of security and at the request of him, as claimed by the Department. I find that a detailed statement was recorded under Section 108 of the Customs Act, 1962 wherein he had stated to have received the said gold bars of foreign origin purported to have been smuggled into India from Bangladesh by one Shri Sonu of Sonapatti, Kolkata for handing over the same to Shri Rajendra Sethiya of 8 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 Raipur, the appellant number 2. I also find that Shri Sonu Jal during his stay in judicial custody retracted his statement dated 24.07.2017 on 27.7.2017 vide "Bandi Aawedan Patra' bearing number 5845 dated 27.07.2017 before Court of Spl. Judge, Economic Offence, Patna. In the said "Bandi Aawedan Patra" Shri Sonu Jal stated that his statement was recorded under duress and he was coming back to Raipur with the said gold bars with valid documents namely Subh Karigar Slip dated 22.07.2017, Purchase Bill dated 21.07.2017 and a letter dated 22.07.2017 of Shri Rajendra Sethiya due to non- availability of Subh Karigar in Kolkata for making gold jewellery out of the said gold bars. I also find reference of this "Bandi Aawedan Patra"
in. the dictated order of the Hon'ble Spl. Judge, Economic Offence Court, Patna dated 28.07.2017 in respect of bail of Shri Sonu Jal in connection with this case. But I find that the adjudicating authority in Para 48 of the impugned order hap observed that notice no.1 has tendered statement during investigation which is confessional in nature and inculpatory in character. He has not retracted the statement rendered under section 108 of the Customs Act, 1962."
11. From the above factual matrix described ibid. I find that the Ld. Adjudicating Authority has gone off beam on the issue and totally erred when he observed that Shri Sonu Jal had not retracted the statement rendered under section 108 of the Customs Act, 1962, more so, I find that the appellant no-1 in his reply to the show cause notice had mentioned about such retraction and later on sent a copy of the retraction made before the Hon'ble Spl. Judge, Economic Offence Court, Patna vide Para 36 of the impugned order. Moreover, the bail was granted by the Hon'ble Spl. Judge, Economic Offence Court, Patna on 28.07.2017 and the issue of retraction came during bail petition; therefore, the Department cannot take the plea of ignorance of such retraction and ignore the said retraction unless the same is rebutted by corroborative evidence to the contrary.
12. Now the question arises whether the confessional statement of Shri Sonu Jal recorded under Section 108 of the Customs Act, 1962 can be made the main basis and relied upon by the adjudicating authority to order confiscation of the subject goods in the backdrop of 9 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 retracted statement of Shri Sonu Jal and the evidences put forth by the appellants for licit possession of the said gold bars to dislodge the entire edifice of the case propped up by the Department. It is settled position of law that statement recorded before a Customs Officer under Section 108 of the Customs Act, 1962 is substantive evidence but the Court expects some corroboration before acting upon it and even the slight corroboration would suffice. Its truth is to be judged in the context of the entire facts and circumstances of the case. It has to be seen whether it fits into the proved facts and evidence and does not run counter to them. Since I find that Shri Sonu Jal has retracted his statement dated 24.07.2017, it needs to be judged as to the evidentiary value of the said retracted statement which the adjudicating authority has held inculpatory. It is a settled rule of evidence that unless a retracted statement /confession is corroborated in material particulars, it is not prudent to pass a conviction on its strength alone and corroboration should not be dispensed with merely because the statement /confession contains a wealth of detail.
13...........
14. I, therefore, find that Shri Sonu Jal through "Bandi Aawedan Patra' before the Hon'ble Court, aforementioned has stated that said two gold bars were handed over to him by Shri Rajendra Sethiya with valid documents, which he enclosed with said "Bandi Aawedan Patra and was coming back from Kolkata to Raipur due to the reasons already described hereinbefore. Now the question is whether the said retraction is corroborated with facts and evidence. I find that Shri Sonu Jal in his bail petition filed before the Hon'ble Spl. Judge, Economic Offences, Patna during his stay in judicial custody has pleaded that he was travelling with legal, valid and genuine paper regarding the gold and enclosed the same with the petition and he was released on bail an 28.07.2017 by the Hon'ble Judge. The perusal of the said documents show that Shri Sonu Jal has put his signature on all the documents on 22.07.2017 claimed to have been with him all along for movement of the subject gold and all these documents having the dated signature of Shri Sonu Jal was also 10 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 enclosed with the retraction made. through "Bandi Aawedan Patra' dated 27.07.2017 during his stay in jail which proves that all these documents were not fabricated ones to cover up the alleged smuggling as has been rightly agitated by the appellant that even though Shri Sonu Jal was in Jail, his originally signed documents used for movement of the said gold was placed before different authorities Le, the Department and the Court. I am, therefore, of the considered opinion that retracted statement of Shri Sonu Jal loses its evidentiary value on the face of retraction coupled with evidence of purchase bill produced about licit possession of the subject gold, which I would discus at the later part of my order.
15. Shri Rajendra Sethiya also lodged his claim over the said gold bars and produced a purchase bill number 5135 dated 21.07.2017 of M/s Saheli Gems &Jewellers Pvt. Ltd, a gold dealer of Bhilai. The Department followed the Bhilai trail by initiating thorough investigation at the said gold dealer and the said gold dealer confirmed the sale of 2.0 kg of gold to Shri Rajendra Jain. The Department did not accept the statements of Shri Rajendra Sethiya and Shri Rajendra Jain, one of the Directors of M/s. Saheli Gems & Jewelers Pvt. Ltd, and alleged that the entire exercise of the said purchase and sale of gold was an afterthought. It was held that no cars belonging to the directors of the said gold dealer croassed Kharun Toll Plaza and payments for purchase were made after booking of the case of the Department. Further, invoice book serial number was not maintained suggestive of the fact that said transaction was a cover up exercise initiated post seizure of the subject goods. Now coming to the serious doubts raised by the Department about the authenticity and genuineness of the purchase bill produced by Shri Rajendra Sethiya, I find that Saheli Gems & Jewellers Pvt. Ltd, has produced relevant bills and stock register maintained by them and appropriate GST has been paid by them against supply of the said gold bars. The entire payments have also been received by them from Shri Rajendra Sethiya. I also find that the Department has also not gone beyond the doorstep of M/s. M/s. Saheli Gems & Jewellers Pvt. Ltd. to know the source of purchase of the said gold bars made by them (the gold dealer) to dislodge and 11 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 disprove the claim of the appellants about sale of the said gold bars by Shri Rajendra Jain to Rajendra Sethiya. Therefore, the authenticity and genuineness of the said transactions cannot be questioned merely on the presumptions that said gold bars with foreign marking were smuggled into India on the basis of retracted statement of Shri Sonu Jal, not corroborated with any material evidence. Further, the findings of the lower authority that Toll Plaza recodes do not show the movement of cars used to ferry the said gold bars from Bhilai to Raipur by road cannot dislodge the claim of the appellants of the said transactions of 2.0 kg gold because the Department had never confronted Shri Rajendra Jain about the vehicular route used by him to travel from Bhilai to Raipur on 21.07.2017 for handing over 2.0 kg of gold physically by him. Moreover, Google Map would show that one can travel from Bhilai to Raipur without touching Kharun Toll Plaza, Kumhari situated in Bhilai Raipur Expressway connecting Bhilai and Raipur.
16. As regards the findings of the lower authority about the alleged telephonic conversations of Shri Rajendra Sethiya with Shri Sonu of Kolkata smuggling gold from Bangladesh based on a text message sent by Shri Sethiya from his mobile number to Shri Sonu's mobile number, I find that the Department tried to trace out the whereabouts of Shri Sonu of Kolkata with reference to two mobile numbers stated to have been used by Shri Sonu vide statement dated 24.07.2017 of Shri Sonu Jal. The Department linked one Shri Chandan Malik and one Shri Sachin Gupta who happen to be the registered users of the said two mobile numbers but they never took any initiation to enforce their appearance before the Department in Patna beyond submission of some replies disowning their association with the purported smuggling of the subject gold. But the Department did not take pains to visit the aforesaid two persons having linkage with the mobile numbers alleged to have been used by Shri Sonu to keep in touch with Shri Sonu Jal and Shri Sethiya to confirm their disassociation with the subject goods. Moreover, given the facts that the subject consignment was 21st one, the Department should have carried forward the investigations further to get the details about the correct address, mobile numbers, etc of Shri Sonu for tracing him to 12 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 know the entire chain of the alleged smugglings of gold. Having not done so, the whole effort of the Department was to heavily rely on the said retracted statement and some loose and unfounded evidence to disprove the authenticity and genuineness of purchase bill no. 5135 dated 21.07.2018 and other documents produced by the appellant.
17. The adjudicating authority in his findings has observed that the import of gold of foreign origin by eligible passengers and various entities is subject to certain conditions and restrictions envisaged in the notifications issued by the Customs and moreover, the said invoices produced by the appellant do not contain the description of the foreign origin gold seized by the officer of DRI and the said invoice was not backed by any import document and no payment was made to this effect by the appellant Shri Sethiya before the seizure of the subject goods. It is settled position of law that under the liberalized economy post repeal of Gold Control Act there are no legal requirements either for the buyer or seller to maintain and mention the descriptions of the gold with old Lind its markings in the transaction of such gold.
18.------------
19. To sum up, in view of the discussions made hereinbefore, I am led to observe that the Department has failed to bring into surface even a shred of evidence to disprove the licit purchase of gold by the appellant and accordingly hold that the claimant appellant has adduced credible evidence to discharge burden of proof cast upon him in terms of Section 123 of the Customs Act and the Department has failed to prove the smuggled nature of the subject goods.
20. Under the above facts and circumstances and in view of judicial pronouncements cited supra, I am of the considered view that the Department was acting an no evidence and there is no iota of evidence that the seized gold of foreign origin were smuggled into India Suspicion/presumption howsoever strong cannot take the place of evidence and cannot be a ground for confiscation of the said seized gold under Section 111 of the Customs Act, 1962.
13Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019
21. In view of the discussions made above, the impugned order confiscating the gold in question and imposing penalty on the appellant 2 is not sustainable in law and on facts and the same is liable to be set aside. Accordingly, I set aside the same. The claimant appellant Shri RajendraSethiya 2 is entitled to the return of the gold and I order accordingly. So far as imposition of penalties upon the other appellants is concerned it is opined that once the case is decided on merits in favour of the claimant appellant then penalties imposed upon all other appellants under Section 112 and 114AA of the Customs Act, 1962 are required to be set aside and I set aside the same accordingly."
8. We find that learned Commissioner (Appeals) has relied upon the case of Mohtesham Mohd. Ismail Vs Special Director, Enforcement Directorate, 2007 (220) ELT 220 (SC) and Vinod Solanki Vs UOI, 2009 (233) ELT 157 (SC) regarding the accessibility retracted statements.
We also find that he relied upon the case of S.K. Chaira Vs Commissioner of Customs (Prev.), Mumbai, 2002 (127) ELT 415 (Tri.
Mumbai) regarding the scope of provisions of Section 123. He also relied upon Ashok Kumar Agarwal Vs UOI, 2016 (342) ELT 232 (CAL) on the issue of burden of proof. On going through the various case laws cited by the learned Adjudicating Authority and the analysis of facts and circumstances of the cases cited by him, we find that learned Adjudicating Authority has correctly analysed the facts of the case and evaluated the applicable legal provisions and case laws. We find in the instant case, the Department could not adduce any evidence to prove that the gold was of smuggled in nature. Once, Shri Rajendra Sethiya has staked his claim on the impugned gold and has submitted 14 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 documents to establish the same; it was incumbent upon the Department to disprove the same with the documentary evidence or cogent investigation.
9. We find that the Department attempts to disprove the claim of Shri Rajendra Sethiya on the basis of arguments that his cars did not pass to certain toll plaza, his tower location did not indicate that he travelled to Bhilai on the particular date and his transaction with Saheli Gems and Jewelers Private Limited, Bhilai was the first one and there too it was on credit. We find that these claims would not stand to scrutiny of law as no further evidence to disprove the claim has been adduced. It is not uncommon in the trade that a particular person or firm enters into a trade with another person or firm for the first time.
For the same reason, it cannot be said that the transaction is not involve genuine purchase. Sale of credit also is common in business.
What is to be seen that whether the transaction was genuine, factual or only a fabricated one. Looking into the facts and circumstances of the case, we find that money has been paid to M/s Saheli Jewelers though the later date which is again not an uncommon practice in the trade. The transactions of money though completed at a later date cannot be dismissed as fake without further investigation into the facts as to whether the transfer of money has really taken place or not. We find that no such investigation has taken place. Again the transaction is attempted to be discarded citing the Toll report and tower location etc. as these evidences cannot be taken as a conclusive evidence as 15 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 there are various possibilities as discussed by the learned Adjudicating Authority. We find that no further investigation on this issue has taken place by questioning the persons concerned and the case is attempted to be built up of logical arguments which, we find, is incorrect.
10. We also find that the seizure was not in Customs' area but was on a train at Tatanagar. The intercepted person was brought to DRI office in Patna and seizure and other proceedings have taken place in Patna.
Therefore, it was incumbent upon the Department to prove that the impugned gold is of foreign origin and that too a smuggled one.
Therefore, we find that the only semblance of evidence available with the Department is the retracted statement of Shri Sonu Jal and conjectures based cell tower location and toll plaza records. Moreover, we find that in the instant case, the Adjudicating Authority has examined the facts and circumstances of the case and came to the conclusion that the statement of Shri Sonu Jal cannot be relied upon in view of the absence of cogent corroborative evidence . It has been since placed on record that said Shri Sonu Jal is no more and he passed away on 18.10.2020 as per the death certificate issued by the Registrar, Birth and Death, Municipal Corporation, Raipur. Under the circumstances, we find that the findings of the learned Adjudicating Authority are legal and proper and as such the impugned order does not require to be interfered with. Thus, we do not find any merit in the appeals filed by the Department and hold that for the reasons 16 Customs Appeal Nos.76612, 76614, 76615 & 76616 of 2019 discussed above, the same are not maintainable and are liable to be dismissed.
11. Therefore, we uphold the impugned order and dismiss the appeals filed by the Department and miscellaneous applications also stands disposed of accordingly.
(Order pronounced in the open court on 28 March 2022.) Sd/ (P.K.CHOUDHARY) MEMBER (JUDICIAL) Sd/ (P.ANJANI KUMAR) MEMBER (TECHNICAL) sm