Customs, Excise and Gold Tribunal - Delhi
Upendra Soni And Shri Bal Krishan Soni vs Cc on 14 June, 2005
Equivalent citations: 2005(102)ECC409
ORDER P.S. Bajaj, Member (J)
1. In these appeals, the appellants have contested the imposition of penalties and confiscation of their goods (one gold bar and silver) as ordered through the impugned Order-in-Appeal.
2. I have heard both sides and gone through the record. On 23.5.1992, recovery of one gold bar and some quantity of silver, as detailed in the impugned order, and Indian currency of over Rs. 2. lakhs was effected from the residential premises of Shri Balkishan Soni, appellant. He himself was not present at the house at that time. His father, Shri Anant Ram Soni, and his brother, Shri Satyanarayan, were interrogated. His father denied his knowledge about the business activities of his son, Shri Balkishan Soni. However, his brother, Shri Satyanarayan, who was present at that time, disclosed that in the absence of his brother, Shri Balkishan Soni, he had been looking after the business. He also disclosed about the smuggled nature of the sized goods, but he retracted his statement when he moved has bail application before the Court.
3. The silver, recovered from the house of Shri Balkishan Soni, did not bear any foreign marking. The man who tested its purity at 99%, namely, Shri Bhola Ram, had in his statement admitted that such silver is available in India in the market for sale and purchase. No other evidence had been adduced to prove the smuggled nature of the seized silver. Shri Balkishan Soni, appellant, had also produced the Bill vide which he purchased the seized silver from Narayan Dass & Sons, Bombay. Even if the genuineness of the bill is not accepted for sake of arguments, still it was for the Revenue to prove the smuggled nature of the goods. But it had failed to do so. Regarding one gold bar, Shri Balkishan Soni has produced the baggage receipt showing the import of the same by baggage holder to India and the genuineness of that baggage receipt had not been questioned. The receipt had been ignored on the ground that it did not relate to the seized gold bar, by the authorities below, without any sufficient cause. The correctness of baggage receipt bearing No. 15733 dated 20.5.1992 could easily be verified by the Revenue and the man who brought the baggage could also be examined, but it had not been done. Therefore, under these circumstances, the seized gold and silver from the premises of Shri Balkishan Soni could not be confiscated.
4. Similarly, there is not an iota of evidence to prove that the Indian currency recovered from the house of the Shri Balkishan Soni, appellant, was the sale proceeds of any smuggled foreign origin goods. No incriminating document in that regard even was found at his house. Therefore, the Indian currency could not be seized and confiscated.
5. From, Shri Upendra Soni, appellant, recovery is said to be made of silver, as detailed in the impugned order. Its recovery was effected from him on 23.5.1992 when he was going from Jodhpur to Jaitaran on scooter. The recovered silver was seized, but it did not bear any mark of foreign origin. No presumption about its foreign origin could be drawn from the fact that it had blue ink on it. There is not an iota of evidence to prove the smuggled nature of the silver. Shri Bhola Ram who tested the purity of the silver, had admitted in his cross-examination that such silver is manufactured for sale and purchase, in India. Even the Panch witnesses of the Panchnama had also admitted this fact. Besides this, Shri Upendra Soni, appellant, had produced the record of M/s Jhummar Lal Refinery to show that he got the silver jewellery melted from them and this fact has not been denied by M/s. Jhummar Lal Refinery. Therefore, the seized silver could not be legally confiscated and so also the scooter which, Shri Upendra Soni was driving at that time.
6. In view of the discussion made above, the impugned order in both the appeals cannot be sustained and is set aside against both the appellants in toto. The appeals of the appellants are allowed with consequential relief, as per law.