Customs, Excise and Gold Tribunal - Mumbai
Rasilaben H. Rathod, Jashwant K. Patel, ... vs Commissioner Of Customs, Ahmedabad on 9 October, 2001
Equivalent citations: 2002(145)ELT156(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. These eight applications are for waiver of deposit of penalties imposed on the applicants as follows.
Penalty (in Rs.)
Rasilaben H. Rathod 5,000/-
Jashwant K. Patel 5,000/-
Devang A. Patel 50,000/-
Bhikhabhai T. Patel 5,000/-
Arvindbhai K. Patel 5,000/-
Vijay D. Patel 50 lakhs
Shailesh R. Patel 50 lakhs
Satishbhai A. Patel 5,000/-
2. These eight persons were stopped by the police on 23.10.99 when they were walking along the streets of Ahmedabad. It is not in dispute that all eight of them went to, and remained in the office of S.K. Jewellers till 29.10.99. It is also not in dispute that police officers were present through out in the office. Each of them were found to be carrying gold on his or her purse. The police informed the customs soon after they discovered the gold on 23.10.99. Investigation by the customs resulted in the issue of notice, adjudicating upon which the Commissioner has imposed penalty and ordered confiscation of the gold.
3. The common claim on behalf of these eight applicants are these. OF the total of 551 pieces of gold each weighing 10 tolas, the department itself ordered release of 51 pieces being satisfied that they were legally imported on the basis of documents of acquisition produced by Sailesh Patel, proprietor of S.K. Jewellers. Three hundred of the remaining 500 pieces were claimed by Sailesh Patel as belonging to him, having been purchased from Paras Bullion of which the proprietor is Vijay Patel. Paras Bullion had in turn claimed to have purchased the gold from two others. The remaining 200 were claimed by Vijay Patel, proprietor of Paras Bullion and according to him was purchased from Riddhi Siddhi, who in turn purchased from ABN - Amro bank. It is contended that he does not justify not accepting these in his order. It is also contended that the goods having in effect been detained by the police they were seized by them and thus the provisions of Section 123 of the Act will not be available to the department. Therefore the burden of proving that the gold was smuggled falls upon the department which has not been discharged. It is further contended that the facts are similar in those in S.K. Chains v. CCE 2001 (127) ELT 415 in which the Tribunal has ordered release of the gold and set aside the penalty.
4. The departmental representative contends that the seizure was in fact made by the customs officers and the fact that the police were present guarding the gold for four days cannot lead to the conclusion that they had seized the gold. Therefore the burden of proving that the gold was not smuggled rested upon the applicant. They have not discharged these satisfactory. He points to various discrepancies with regard to the bill that the Commissioner has cited such as that one of the bills that was produced was a shabby photocopy; the bills of Paras Bullion and ABN Amro did not contain the details of the mint marking of the manufacturer found on the gold; there are further discrepancy with regard to some of the other bills relating to the foreign markings; details of the payment of the gold was not disclosed. He also emphasised the suspicious conduct of the applicant in carrying the gold in footwear or tied around its waist.
5. We would agree that the mode of carriage of the gold and the presence of the eight persons carrying this gold certainly does give rise to suspicion. However, it is debatable whether the provisions of Section 123 of the Act would be available to the department. It is difficult for us to believe that after these persons were apprehended by the police on prior information, (as stated by Desai, sub-inspector during cross examination), the police remained voluntary with these eight persons, who in turn of their own volition stayed at the office of S.K. Jewellers, for four days. The panchnama drawn by the customs officers also seems to suggest that they did it under the supervision of the police, although the departmental representative contends that this is not the correct translation of the Gujarati word in the panchnama. Again, given the fact that there is legal import of sizeable quantities of gold, it would be difficult to dismiss the claim of acquisition by these persons on the ground of discrepancies in the documents, particularly when the persons named by them as sellers have accepted the same. Having regard to these facts, we waive deposit of the penalty imposed on each of the applicant and stay their recovery.
6. Considering the value of gold more than of as two crores and the fact that it has been absolutely confiscated, we accept the request made by the applicant for out of turn hearing. Appeals are listed for hearing on 13.12.2001. The department not to dispose of the gold till the decision of the appeal.