Customs, Excise and Gold Tribunal - Calcutta
Sri Samir Kumar Roy, Sri Subhas Chandra ... vs C.C. (Prev), West Bengal, Calcutta on 4 July, 2001
Equivalent citations: 2001(77)ECC427, 2001(135)ELT1036(TRI-KOLKATA)
ORDER
Archana Wadhwa
1. All the four appeals are being disposed of by a common order as they arise out of the same impugned order of the Commissioner of Customs, Calcutta.
2. Vide the said order the Commissioner has absolutely confiscated 16 pieces of gold bars and 4 piece of gold strips of foreign origin recovered from a Maruti Car belonging to Shri Samir Kr. Ray. The said Maruti Car has also been confiscated with an option to redeem the same on payment of redemption fine of Rs. 20,000/-. Further personal penalty of Rs. 20,000/- each has been imposed on Shri Samir Kumar Ray, Sri Binay Kumar C. Zaveri and Sri Mansukhlal T. Bavishi and Rs. 10,000/- on Shri Subhash Chandra Saha.
3. Briefly stated the facts of the case are as under:
3.1. On 16.10.95 at about 15.30 hrs., on interception and search of one Maruti Car, the Customs Officers found 16 pieces of gold biscuits and 4 pieces of gold strips from the underneath of front seat of the maruti car. Shri Samir Kr. Ray claimed the ownership of the gold in question. On his disclosure one more gold biscuits was recovered from under the mattress of the bed in his bed-room along with Indian currency of Rs. 2,53,525/-. During the course of search of the residential premises of Shri Samir Kumar Ray one Shri Subhash Chandra Saha entered his house. He also was interrogated and 6 pcs. of gold biscuits kept in his rectum was ejected. Shri Saha disclosed that he was to give the said 6 pcs. of gold biscuits to Shri Samir Kumar Ray. As the appellant could not produce any documentary evidence showing legal acquisition of the gold in question, the same along with Maruti Car were seized. The Indian currency was also seized by the officers on a reasonable belief that the same was the sale-proceeds of the smuggled goods. However, the said currency stand refused by the impugned order of the Commissioner.
3.2. During interrogation Shri Ray gave self-incriminating statement admitting the gold in question was smuggled goods. Shri Samir Kr. Ray is proprietary of M/s Bijay Jewellers and carries the business of manufacturing gold ornaments. The statement of the Accountant of Binay Jewellers was also recorded. Subsequently, at the time of hearing of the bale application before the Hon'ble High Court of Calcutta Shri Samir Kumar Ray claimed that he had purchased 21 pcs. of imported gold biscuits from one Shri Mansukhlal T. Bavishi of Mumbai and produced one Bill No. G/118 dated 12.10.95. Enquiries were conducted by the Customs and statement of Shri Vijay Kumar C. Zaveri, In-charge of M/s Mansukhlal T. Bavishi was recorded on various dates. He admitted having sold 21 pcs. of gold biscuits of foreign markings to Shri Samir Kumar Ray of M/s Bijay Jeweller, Calcutta under Bill No. G/118 dated 12.10.95. He further revealed that these 21 pcs. gold biscuits were purchased from the NRI person named Ismail who imported the same under baggage receipt No. 58310 dated 8.10.95, the said deal was made through M/s Pankaj Jewellers of Mumbai on 11.10.95 under Bill No. 205 and recorded in the stock register at page No. 7. They had made full payments to M/s Pankaj Jewellers by issue of cheques.
3.3. On the above facts show-cause notice dated 4.4.96 was issued to various persons proposing confiscation of the foreign origin of gold and amount of Indian currency, imposition of personal penalties upon various persons. The said show-cause notice was resulted in impugned order passed by the Commissioner of Customs, Calcutta.
4. We have heard Shri B.N. Chattopadhaya, Shri S.K. Chatterjee, and Shri P.K. Ghosh, Consultants. Shri A.K. Chattopadhaya appears for the Revenue.
5. It is the contention of the Counsel of Shri Samir Kumar Ray that the gold bars in question were legally purchased by him from Shri Mansukhlal T. Bavishi a Billion dealer of Mumbai who had admitted having sold the same to the appellant. They also gave back to back account of purchase of the same through M/s Pankaj Jewellers and legal importation of the same by Md. Ismail. It is the contention of the appellant that initial statement about smuggled character of the gold was involuntary statement having been extracted by the Customs Officers on physical and mental torture. He submits that this fact of the appellant having been tortured was pointed out by them before the Chief Judicial Magistrate who vide his order dated 18.10.95 ordered for medical treatment of the appellant. As a result of the said order passed by the C.M.M. the appellant had undergone treatment in the jail custody for the injury inflicted on account of assault. In any case the statement was recorded from the appellant after long hours of detention and as such, the same could not be considered as voluntary statement. He submits that the appellant's defence of having purchased the biscuits from M/s Mansukhlal T. Bavishi of Mumbai stand duly corroborated by the statement of representative of the said M/s Mansukhlal T. Bavishi wherein they admitted having sold 21 pcs. of gold bars of foreign origin to the appellant. They had also disclosed the gold biscuit was purchased by them from one Shri Pankaj and they have made full payment to that firm. He submits that baggage receipt was also produced before the officers and there is not allegation about genuineness of the same. He submits that appellant being in the business of gold dealer goldsmith making ornaments had been dealing in foreign origin gold for which evidences of purchase of foreign origin from other dealers were produced by the appellant. He submits that the Commissioner's reason that his account did not show the above gold are erroneous inasmuch as the gold purchased by the appellant personally at Mumbai on 12.10.95 was brought to Calcutta on 14.10.95, which was Saturday. He was intercepted on 16.10.95 and as such the same could not be recorded in his stock book. In any case after abolition of the Gold (Control) Act, 1968 stock book was not maintained regularly as this was not statutorily required. He submits that allegation in the Show-cause notice that on subsequent enquiries Md. Ismail who had originally imported goods was not available at the given address cannot lead to any inference that gold bars sold by Md. Ismail was not legally imported especially when the Revenue had got verified the baggage receipt produced by the appellant which was found to be genuine. Similarly the Commissioner's reasoning that M/s Pankaj Jewellers from whom M/s Mansukhlal T. Bavishi had purchased the goods was not found at his business premises is not indicative that gold was smuggled when there was sufficient evidence produced by the appellant to show that M/s Pankaj Jewellers is existing firm and its proprietor Pratap Bhai Mali was available at his residential address at Borivilli. This fact was specifically brought to the notice of the adjudicating authority by Shri Binay Kumar C. Zaveri in his reply to the Show-cause notice. The bank account of M/s Pankaj Jewellers was also obtained and the bank copy of the same was enclosed with the argument. No enquiry was caused by the Commissioner either in respect of the residential address of Shri Pratap Bhai Mali or about genuine bank account of the said person. As such submits the learned Counsel that confiscation of the gold in question by alleging that there was missing link and all the appellant could not satisfactorily explain the transaction indicating that the gold recovered from the possession of the appellant was the same gold claimed to have been imported by on Md. Ismail is neither justified nor proper. In support of his above submission, reliance has been placed upon various of the Tribunal.
6. The representative of Shri Binay Kumar C. Zaveri of Mansukhlal T. Bavishi of Mumbai submitted that there was no warrant or justification for imposition of personal penalty upon them. They had disclosed the entire facts of the purchase of the gold biscuits from Pankaj Jewellers, a broker and sale of the same to Shri Samir Kumar Ray. They had also given the details of the pay - order and the cheques given by them to M/s Pankaj Jewellers, as consideration towards sale of the gold biscuits in question. Bank account statement of M/s Pankaj Jewellers have been produced and his residential address disclosed. In these circumstances it was not open to the adjudicating authority to conclude that M/s Pankaj was not available. The baggage receipt of Md. Ismail from whom M/s Pankaj have brought the goods was also produced before the officers and the same was not found fake or ingenuine. In support of his above argument reliance has not been placed on the Tribunal's decisions in the case of R. Saravanaraj vs. C.C., Trichi reported in 1999 (35) RLT 185 (CEGAT) and in the case of S.K. Chains vs. C.C. (Preventive), Mumbai reported in 2001 (127 ELT 415 (T).
7. Identical arguments have been advanced on behalf of Shri Subhash Chandra Saha, Shri Vinay Kumar C. Zaveri and Shri Mansukhlal T. Bavishi. Shri Subhash Chandra Saha pleaded that no gold was recovered from him and he was picked up by the Customs officers when he was going to Nursing Home. He has been made victim of circumstance and has been made to sign the document forceably.
8. Shri A.K. Chattopadhaya, learned JDR appeared on behalf of the Revenue and reiterated the reasoning adopted by the adjudicating authority.
9. We have given our careful consideration to the argument advanced on behalf of the appellants and on behalf of the Revenue. As regards the confiscation of 21 pcs. of gold biscuits recovered from Shri Samir Kumar Ray it is seen that the said appellant had taken a definite stand before the adjudicating authority that the gold in question was purchased by him through Mansukhlal T. Bavishi and Shri Binay C. Zaveri the representative of the said M/s Mansukhlal T. Bavishi have clearly deposed in his statement before the investigating officer that the gold in question was sold by them to Shri Samir Kumar Ray, Calcutta at Mumbai and Shri Ray has signed the purchase bill at Mumbai and took the delivery of the same personally. They have also disclosed their source of acquisition of gold from M/s Pankaj Jeweller who acted as a broker. They also revealed that gold in question was legally brought by Md. Ismail and was cleared on payment. The said defence of the appellant has not been accepted by the adjudicating authority by observing that there are certain missing links in the stand of the appellant inasmuch as M/s Pankaj Jewellers could not be identified nor the person who had claimed to have imported the said gold in the baggage receipt. On the other hand we find that the appellant as also Shri Mansukhlal T. Bavishi of Mumbai have placed on record sufficient evidence showing sale of the gold biscuit in question. The residential address of the proprietor of M/s Pankaj Jewellers was disclosed by Shri Mansukhlal T. Bavishi in their reply to the Show cause Notice. There is nothing in the impugned order to reflect upon efforts made by the Revenue to contact the proprietor of M/s Pankaj Jewellers or to verify the bank account produced by Shri Mansukhlal T. Bavishi showing the payments of consideration of gold biscuits to M/s Pankaj. it is also on record that the appellants had subsequently paid the entire consideration to M/s Mansukhlal T. Bavishi for 21 gold biscuits in question. The observation of the adjudicating authority that the gold biscuit was not recorded in the appellant's record thus reflecting upon smuggled character of the same are not found favourable with us inasmuch as firstly the appellant was under no legal obligation to maintain any records and secondly, the appellants have explained that Shri Samir Kumar Ray landed in Calcutta on 14.10.95 which was Saturday and 15.10.95 was Sunday. And thereafter the gold was seized in the morning hour on 16.10.95 this giving no opportunity to the appellant to record the same in his business records. We also take note that Revenue has nowhere alleged that the baggage receipt produced by the appellant is not genuine. The fact of non-tracability of Md. Ismail, who imported the gold by itself cannot ipso facto lead to conclusion that the gold was smuggled especially when the appellants have been able to establish the sale of the same by M/s Pankaj to Shri Mansukhlal T. Bavishi and further sale to the appellant Shri Samir Kumar Ray. In this connection we take into consideration the Tribunal's decision in the case of S.K. Chains reported in 2001 (127) ELT 415 (T) observing as under:
"7. Thus, today there exists a very pecular situation. On the one hand the Customs Act considers it necessary to ask a person to establish the legality of the origin of the gold seized from him while on the other hand in pursuance of the relaxations made in the Import Policy and the Baggage Rules framed under that very Act, there is a floor of foreign marked gold in the town. Such gold changes hands several times on importation. Since the repeal of the Gold (Control) Act in 1968, there is no legal requirement for the buyers and sellers of gold to maintain any registers no is there any requirement to issue invoices under any Central Act."
10. Accordingly, we observe that as a result of liberalisation of the Policy as regards the import of foreign marked gold, such gold is available in the Indian market in ample. In the baggage receipt issued by the Customs authorities no identification marks are given so as to connect a particular piece of gold with the factum of payment of duty. The fact of Shri Mansukhlal T. Bavishi having admitted to have sold the gold in question to the appellant by itself is sufficient to show the legal acquisition of the gold by Shri Ray. As such we are of the view that the onus placed upon the appellant under provisions of the Section 123 is discharged to the requisite extent. Accordingly we set aside the confiscation of 21 pcs. of gold biscuits belonging to Shri Samir Kr. Ray and confiscation of his maruti car and imposition of personal penalty upon him. For the same reason, the imposition personal penalty on Shri Mansukhlal T. Bavishi and Shri Vinay Kumar C. Zaveri is also set aside.
11. As regards the confiscation of six pieces of gold biscuit recovered from the rectum of Shri Subhash Chandra Saha and imposition of personal penalty upon him, it is seen that he has denied the recovery of the same and has submitted that the Customs Officers have implicated him falsely. However, he has not been able to substantiate his above claim of false implication by referring to any justifiable cause or reason for the Officers to do so. Panchanama shows the recovery of the said gold biscuits from his rectum and ejection thereof, before the witnesses. Nothing to the contrary has been pointed out by the said appellant to show that the recovery was not made from his person. Reliance by him on the Tribunal's decision in the case of Deben Chandra Karmakar reported in 1999 (109) ELT - 241 (T) is not appropriate inasmuch as each case is to be decided on the facts available in that particular case. Accordingly, we hold that the imposition of personal penalty on Shri Subhash Chandra Saha was justified. He is not claiming ownership of the six pieces of gold biscuits in question. Accordingly, confiscation of the same is upheld. The appeals are disposed of in the above terms.
(Pronounced)