Customs, Excise and Gold Tribunal - Mumbai
Shri Suresh Kumar Raisoni, Shri Jabbar ... vs Commissioner Of Customs on 4 February, 2004
Equivalent citations: 2004(93)ECC129, 2004(175)ELT540(TRI-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. The facts of the case are that, personal search of one Shri Jabbar Singh Thakur who entered the premises of M/s. K.K. Chains, Zaveri Bazar, Mumbai on 19.8.97 during the course of search of the above mentioned premises, resulted in recovery of 42 Foreign Marked Gold Biscuits valued at Rs. 22,26,000/- which were seized under the reasonable belief that they were liable to confiscation as per the provisions of Customs Act, 1962 as Jabbar Singh Thakur could not produce any legal documents to prove the licit import of the gold or give any satisfactory explanation regarding the possession of the same. In his statement of the same date, he deposed that he was employed with one Shri Suresh Jain (Suresh Kumar Raisoni) of M/s. Rajendra Textiles, Grant Road, Mumbai; that as directed by his employer he had visited M/s. K.K. Chains to deliver foreign marked gold biscuits to Shri Phoolchand K. Jain on 10-15 occasions; that he had delivered foreign marked gold biscuits to Shri Phoolchand K. Jain; that on 19.8.97 in the afternoon Shri Suresh Jain gave him gold biscuits in question and told him that they were smuggled and that he ( Shri Jabbar Singh Thakur) was to deliver them to Shri Phoolchand K Jain; that he carried the gold with him and reached the premises of M/s. K.K. Chains to hand it over to Shri Phoolchand K Jain when the Customs Officers intercepted the same and seized them. Summons was issued to Shri Suresh Kumar Raisoni on several dates but he failed to appear before the investigating officers. Further he did not send any original delivery challan under which he claimed to have acquired gold from the importer M/s. Arihant Bullion Gem & Jewellery, which challan, he stated, he has produced before the Court on 20.8.97. One Shri Ganpatsingh Vanechand Mehta, Proprietor of M/s. Arihant Bullion Gem & Jewellery deposed on 6.10.97 that he had purchased the seized gold biscuits on 18.8.97 from a passenger Shri Bhagwan Ghanshyamdas Mathani through his agent Shri Bhupendra Hargovindas Thakker and issued 2 cheques totally for Rs. 22,09,200/-; that he had sold this gold to Shri Suresh Kumar Raisoni on 19.8.97 when Shri Raisoni had visited his shop and Shri Raisoni issued him a cheque for Rs. 22,70,520/-. Summons sent to Shri Bupendra Hargovindas Thakker at the address given by Shri G.V. Mehta could not be served as verification indicated that Shri Thakker was not staying at the said address. In his statement dated 11.11.97, Shri Phoolchand Jain stated that when his premises was being searched on 19.8.97, Shri Jabbar Singh Thakur entered the premises, that he did not know who had sent Jabbar Singh Thakur on that date; that he does not know any one named Suresh Raisoni.
2. Comparison of the Baggage Receipt dated 22.4.97 produced by the proprietor of M/s. Arihant Bullion Gem & Jewellery indicated import of 85 gold bars of 10 tolas each totally weighing 9915 gms bearing marking "999.9 10 Tolas" ; the gold bearing the marking 999.9 written in a circle in top portion and with word "10 tolas" written in the centre of the gold bars, whereas, out of the 42 foreign marked gold biscuits recovered from Shri Jabbar Singh Thakur, 39 bore the markings "PGJ 10 Tolas MELTERASSAYER 999.0" and 3 gold biscuits bore the markings "UBS - Union Bank of Switzerland, 10 Tolas, MELTER ASSAYER 999.0" which indicated that the markings of the seized gold were different from the Baggage receipted received from M/s. Arihant Bullion Gem & Jewellery. In respect of the seized gold biscuits, the burden of proving that they were not smuggled was required to be discharged from the person from whose possession they were recovered and seized. Since, it appeared that the seized gold was imported into India illegally and hence liable to confiscation under Section 111(d) of the Customs Act, 1962, show cause notice proposing confiscation and proposing imposition of penalty under Section 112 on Shri Jabbar Singh Thakur, Shri Suresh Kumar Raisoni, Shri Ganpatraj V. Mehta and Shri Phoolchand K. Jain was issued on 9.1.98 The notice was adjudicated by the Commissioner of Customs(Prev.) who ordered absolute confiscation of the gold under the provisions of Section 111(d) and imposed the following penalties under Section 112 on the following persons:
1. Shri Suresh Kumar Raisoni Rs. 5 lakhs (2) Shri Jabbar Singh Thakur Rs. 1 lakhs;
(3) Shri Ganpatraj V. Mehta Rs. 1 lakh (4) Shri Phoolchand K. Jin Rs. 2 lakhs. Hence these appeals.
3. We have heard Shri Harishankar, ld.Counsel for the appellants and Shri S.V. Parelkar, ld.DR for the Revenue.
4. The appellants relied upon the judgment of the Sessions Court of Bharuch, Gujarat in Criminal Revision Application No. 42/98 against which the DRI preferred a Special Criminal Application before the Gujarat High Court but withdrew the petition, to substantiate their case that the gold was not liable to confiscation as it forms part of a larger consignment of 170 gold bars imported by Shri Bhagwan G. Mathani ( 85 gold bars) and his daughter Ms. Liana Mathani (85 gold bars) both NRIs holding Singapore Passport who arrived from Singapore to Mumbai on 22.4.97. We have carefully gone through the judgment relied upon. The facts as narrated in the order of the sessions Court in Criminal Revision Application No. 42/98 are that on 31.3.1998, 116 gold biscuits were stolen from a car travelling from Ahmedabad to Bombay, FIR was lodged, accused were arrested and the gold was recovered. The gold was handed over to the Customs department, Bhupendrabhai H. Thakker moved the Judicial Magistrate First Class, Bharuch for return of the gold which was allowed; the DRI filed Revision Application against the order of the Magistrate contending that the gold was smuggled for the reason interalia that the marking of the gold, brand and purity as per the statement is 999.9 while the panchanamas indicate the purity 999.0; the Sessions Judge noted in his order that Shri Mathani and his daughter had imported 85 gold biscuits each paying customs duty thereon and gave them to Shri Bhupendrabhai Thakker for sale and out of the 85 gold biscuits, 54 was sold by Shri Thakker. The Sessions Court upheld the release order of the Magistrate in view of the changed and liberalised scenario for import of the gold and in the absence of any embargo or prohibition of duty paid gold. The appellants counsel relied upon the finding that out of the 85 gold biscuits imported by Shri Bhagwandas Mathani, 54 was sold, to support the plea that the 42 gold biscuits seized in the present case form part of the 54 gold bars sold by Shri Bhupendrabhai Thakker on behalf of Mathani. However, this plea is not acceptable as there is no link between the gold forming the subject matter of the Sessions Court judgment and the gold seized in this case. In other words, the names of the purchasers of the 54 gold biscuits (out of 85 gold biscuits imported by Bhagwandas Methani) are not forthcoming from the record in order to establish that Shri Shri Jabbar Singh Thakur who claimed to have purchased the gold in question from Bhupendrabhai Thakker (agent of Bhagwand Mehtani) did actually purchase the gold legally imported by Shri Bhagwand Mehtani. Further the markings on the gold biscuits seized are totally different from the markings on the 85 gold bars imported by Mehtani on 22.4.97 and shown in the Baggage receipt for payment of duty on the gold. In these circumstances, we hold that the appellants had failed to discharge the burden cast upon them that the gold is not of a smuggled origin. We, therefore, uphold the confiscation. However, having regard to the fact that gold though a restricted item, is not prohibited and to the liberalisation in import of gold, we permit Shri Suresh Kumar Raisoni to redeem the gold on payment of fine of Rs. 5 lakhs (Rupees Five lakhs) along with payment of appropriate duty thereon. We also sustain penal action against all the appellants as the evidence on record shows that they had knowledge that they were dealing in gold which were liable to confiscation. However, having regard to the totality of the facts and circumstances, we reduce the penalties as under:
Shri Suresh Kumar Raisoni Rs. 2.5 lakhs (Rupees Two lakhs fifty thousand); Shri Jabbar Singh Thakur Rs. 50,000/- (Rupees Fifty thousand); Shri Ganpatraj V. Mehta Rs. 50,000/- (Rupees Fifty thousand) and Shri Phoolchand K. Jain Rs. 1,00,000/- (Rupees One lakh).
5. The appeals are thus partly allowed.
(Dictated in Court)