Custom, Excise & Service Tax Tribunal
Mukul Aggarwal vs Principal Commissioner, Customs-New ... on 23 September, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. - IV
Customs Appeal No. 52289 of 2021 [DB]
[Arising out of Order-in-Appeal No. CC (A) CUS/D-II/Prev./NCH/1256-
1257/2020-21 dated 13.01.2021 passed by the Commissioner of Customs
(Appeals), New Delhi]
Shri Mukul Aggarwal ...Appellant
1645, Gali Rampal Mandi Ramdas,
Mathura, U.P. - 281001
VERSUS
Commissioner of Customs (Preventive),
New Delhi ...Respondent
New Custom House, Near IGI Airport, Delhi WITH Customs Appeal No. 51137 of 2022 [DB] [Arising out of Order-in-Appeal No. CC (A) CUS/D-II/Prev./NCH/1256- 1257/2020-21 dated 13.01.2021 passed by the Commissioner of Customs (Appeals), New Delhi] Shri Ankit Bansal ...Appellant 1750, Gali Rawaliya, Kachi Sadak, Matura, U.P. - 281001 VERSUS Commissioner of Customs (Preventive), New Delhi ...Respondent New Custom House, Near IGI Airport, Delhi APPEARANCE:
Mr. Aakarsh Srivastava, Advocate for the Appellant Mr. Nagendra Yadav, Authorized Representative for the Respondent CORAM: HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) DATE OF HEARING: 19.07.2022 PRONOUNCED ON: 23.09.2022 FINAL ORDER No. 50903-50904/2022 2 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] DR. RACHNA GUPTA The present order disposes of two appeals arising out of same show cause notice and the same adjudicating orders. The facts in brief relevant for the present adjudication are as follows:
2. The Customs Preventive, New Delhi got a specific information about 3 Kgs of smuggled gold to be carried from Delhi to Mathura.
The team along with two independent witnesses reach the spot on 23.10.2017, where the person was intercepted. The said person identified himself as Shri Ankit Bansal S/o Late Shri Ajay Kumar Agarwal resident of Mathura. As per his request of being searched at a safer place, he was brought to New Customs House, Near IGIA, New Delhi. On being searched three pieces of yellow metal in the form of bars having the inscription "Rand Refinery Ltd, South Africa, 1000g GOLD 9950 FINENESS 2017" were found kept in the pockets of white coloured cloth having black coloured zip wrapped around the waist of said Shri Ankit Bansal. Each gold bar was found packed in paper package bearing marking "KOLHAPUR GOLD LAB", Kucha Mahajani, Chandni Chowk, Delhi. Two weighment slips both bearing S.No. 219543 dated 23.10.2017 issued by Purana Dharam Kanta, Sarafa, Charitable Trust, 1168, Kucha Mahajani, Delhi was also found. Shri Ankit Bansal said that he was an employee of M/s. Kalindi Traders, Mathura whose proprietor is Shri Mukul on whose directions he carried the gold bars from Delhi to Mathura. The Officers of Customs Preventive called the departmental Jewellery Appraiser (Expert), Shri Vikram Bhasin, who examined the recovered yellow metal bars on 23.10.2017 itself and found the metal was Gold of 995 purity. Panchnama of 23.10.2017 in the 3 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] presence of two independent witnesses who were accompanying the Customs Preventive Team was prepared. The said three gold bars were accordingly seized vide seizure memo dated 23.10.2017. The bars were scratched by the hammering and the S.Nos. of the bars appeared to be as A68....6, A68-26 and A68-026.
3. Statement of Shri Ankit Bansal was recorded on 24.10.2017. Shri Mukul Aggarwal vide his letter dated 08.11.2017 submitted that the seized gold bars were his legally purchased gold and that the gold is not of foreign origin as the bars were got locally manufactured with certain impurities in the forms of Ruthenium 2 gm in it i.e. approximate 2% in the 1 Kg gold bar from a Bengali karigar namely Prabhas who was paid making charges of Rs. 400 per piece. The premises of Shri Mukul Aggarwal and Shri Ankit Bansal were searched. During investigation following statements were recorded :
Name of the witness Date of statement
Shri Jitender Phalke, 25.10.2017
Partner of M/s.
Kolhapur Gold Lab
Shri Pawan Kumar of 25.10.2017
Purana Dharam Kanta
Committee
Shri Pankaj Tayal, 12.12.2017
Proprietor of M/s.
Ginni Chain &
Jewellers
Shri Mukul Aggarwal, 21.12.2017
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Customs Appeal No. 52289 of 2021 [DB]
Customs Appeal No. 51137 of 2022 [DB]
Proprietor of M/s.
Kalindi Traders
Shri Vivek Aggarwal, 26.12.2017
Director or M/s. S.B.
Ornaments Pvt. Ltd.
Shri Jitender Phalke, 05.03.2018.
Partner of M/s.
Kolhapur Gold Lab
again was examined
4. Accordingly, Show Cause Notice No. 12620 dated 17.09.2018 was issued by Commissioner of Customs (Preventive), New Delhi to Shri Ankit Bansal, Shri Pankaj Tayal and Shri Mukul Aggarwal. However, the aforesaid Show Cause Notice could not be issued prior the expiry of period of six months as the entire investigation could not be completed by them. Hence, the Principal Commissioner of Customs (Preventive) vide Notice No. 02/2017-18 dated 26.03.2018 read with the Corrigendum dated 06.04.2018 extended the period of issuance of show cause notice by another six months in terms of proviso to Section 110 (2) of the Customs Act, 1962. After concluding the investigation department found that Shri Mukul Aggarwal and Shri Ankit Bansal along with Shri Pankaj Tayal have deliberately concerned themselves in illicit transaction of purchase/sale of smuggled gold and were also observed to be liable for penal action under Section 112 and 117 of the Customs Act, 1962. Accordingly, the aforesaid Show Cause Notice No. 12620 dated 17.09.2018 was served upon three of them proposing the 5 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] confiscation of the seized gold and the imposition of penalty upon three of them under Section 112(b)(i) and 117 of the Customs Act, 1962. The said proposal was initially confirmed vide Order-in- Original No. 27/2019 dated 25.09.2019. The appeal thereof has been rejected vide Order-in-Appeal No. 1256-1257/2020-21 dated 13.01.2021. Being aggrieved, the appellant is before this Tribunal.
5. We have heard Shri Aakarsh Srivastava, learned Advocate for the appellants and Shri Nagender Yadav, learned Departmental Representative for the respondent.
6. It is submitted by the learned Counsel for the appellant that allegations of smuggling the gold of foreign origin are absolutely wrong. Shri Ankit Bansal was Shri Mukul Aggarwal's employee and he was carrying the impugned gold from Mathura to Delhi, against delivery challan for testing purposes as gold testing facility was not available in Mathura. The challan was very much in his possession along with a diary having bank details of Shri Aggarwal but both these documents though were recovered but were suppressed by the departmental officers. To impress upon the said suppression, it is submitted that from the statement dated 24.10.2017 of Shri Ankit Bansal, wherein, answer to Question No. 15, it is clear that he had given all relevant details including the 14 digit Account No., the IFSC code Nos. etc. with respect to four of the accounts of M/s. Kalindi Traders (Shri Mukul Aggarwal is the proprietor thereof). It is submitted that such minute details cannot be recollected. In fact those were told from the diary which was in possession of Shri Ankit Bansal but it has not been mentioned in the Panchnama dated 23.10.2017.
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Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] 6.1. Learned Counsel further submitted that Shri Ankit Bansal, in his statement dated 24.10.2017, stated about carrying the gold bars under the authority of appellant Shri Mukul Agarwal. The entire other statement of Shri Ankit Bansal is prayed to not to be relied upon as the same was made under stress for the reason that he was kept in unlawful overnight custody and that he was not examined as per the tenets of Section 138 B of Customs Act, hence it is submitted that documentary evidence when read in the light of statements of appellant as well as that of Shri Pankaj Tayal are sufficient to prove that the gold intercepted from Shri Ankit Bansal was the legitimate gold being purchased by the appellant from his suppliers M/s. S. B. Ornaments on 17.10.2017 and 31.10.2017. The said fact has duly been admitted by Shri Vivek Aggarwal, Director of said M/s. S.B. Ornaments Pvt. Ltd. vide his statement as was recorded on 26.12.2017. It is further submitted that all requisite documents as that of purchase registers, invoices etc. were provided by the appellant. These documents in the light of the letters already given by the appellant to the department are sufficient to prove the legitimate possession of the gold in question with Shri Ankit Bansal.
6.2 Learned Counsel also impressed upon that even the details of Shri Prabhas Karigar Shop who added impurities to the gold bars so as to reduce the available purity to 995 instead of 999 were also given to the department. But no investigation had been conducted. This lacuna also is sufficient to support the appellant's case. Learned Counsel has relied upon the decision of CESTAT, Allahabad in the case of Shri Neeraj Agarwal and Shri Bipat Bind Vs. 7 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] Commissioner of Customs (Preventive), Lucknow reported as 2019 (9) TMI 334 to impress upon that since the purity of intercepted gold was less than the purity of gold of foreign origin, the intercepted gold cannot be held liable to confiscation on the allegations of smuggling. Another decision of M/s. Anil Gadodia vs. C.C, New Delhi (Prev.) reported as 2020 (4) TMI 82 CESTAT, New Delhi has also relied upon for impressing upon non- admissibility of the statement which have not tested under Section 138 of the Customs Act. The order under challenge is accordingly prayed to be set aside and appeal to be allowed.
7. While rebutting the submissions, learned DR has heavily relied upon the statement of Shri Ankit Bansal, wherein, it was stated that Shri Ankit Bansal was carrying the seized gold bars of foreign origin in a cloth belt under the directions of Shri Mukul Agarwal and that he earlier had also been similarly carrying gold. It is submitted that since the seized gold has the stamp of "Rand Refinery Ltd., South Africa" and had also been so admitted, the seized gold is rightly held to be a smuggled gold. With respect to the applicability of Section 138B of Customs Act, 1962 it is submitted that when Shri Ankit Bansal had admitted about the allegations there was no need to test him through cross examination. The decision of Hon'ble High court of Kerala at Ernakulam in the case of N.S. Mahesh Vs. Commissioner of Customs, Cochin reported as 2016 (331) E.L.T. 402 (Ker.) has been referred, where the cross examination even of the departmental officers was denied.
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Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] 7.1 Learned DR further submitted that since the seized gold was reasonably believed to be the smuggled one, the onus to prove otherwise was either upon Shri Ankit Bansal from whose possession gold was recovered or upon Shri Mukul Agarwal, who claimed to be the owner of the said gold in terms of Section 123 of the Customs Act, 1962. It is submitted that the documents produced by the appellant are still not sufficient to discharge the said burden. Commissioner (Appeals) has rightly concluded that the said onus has not been discharged by the appellant. The impugned gold has rightly been held to be smuggled one and as such has rightly been confiscated. No question arises for setting aside of the penalty imposed in the circumstances. While praying for dismissal of the appeal, Learned DR has relied upon the following decisions:
1. Union of India Versus Raj Grow Impex LLP reported as 2021 (377) E.L.T. 145 (S.C.)
2. Commr. of Cus., New Delhi Vesus Ashwini Kumar Alias Amanulla reported as 2021 (376) E.E.T. 312 (Tri.
Del.)
3. Surjeet Singh Chhabra Vs. UOI reported as 1997 (89) E.L.T. 646 (S.C.)
4. Kanungo & Co. Vs. Collector of Customs, Kolkata & Others reported as 1993 (13) E.L.T. 1486 (S.C.)
8. Having hearing the rival contentions and perusing the entire records, it is held as follows:
8.1. It is observed that Commissioner (Appeals) has relied upon the statement of Shri Ankit Bansal considering it to be a voluntary statement having clear cut admission of the guilt. The said reliance 9 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] has heavily been objected for want of non-compliance of Section 138B of Customs Act, 1962. Accordingly, foremost it is necessary to check as to whether the compliance of 138 B of the Customs Act, 1962 was mandatory and that as to whether the non-compliance thereof amounts to no evidence on record to disprove the allegations of show cause notice. With respect to the first question Section 138B of Customs Act is reproduced here. It reads as follows:
"138B. Relevancy of statements under certain circumstances:
(1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,-
(a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or
(b) When the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice."10
Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] 8.2 The perusal thereof makes it clear that it is mandatory on the adjudicating authority to examine the witnesses before itself prior relying upon the statement irrespective it has not been so asked by the party whose statement has been recorded or who is relying upon the said statement. These are the observations of this Tribunal in the case of M/s. Anil Gadodia (supra). No doubt department has also relied upon a decision of Kerala High Court where denial of cross examination of witnesses was upheld. But perusal reveals that in that case the cross examination of departmental officers was denied on the ground that those are the officers who assessed, audited and examined the import consignment and on the ground that show cause notice has not relied upon any of those statements but has been issued on the basis of the documents. Hence the said decision do not appear to squarely cover the present case. We do not find any reason to differ from the decision in the case of M/s. Anil Gadodia (supra). As the result thereof it is held that statement of Shri Ankit Bansal cannot be read into evidence. For the same reason the statements even of Shri Pankaj Tayal and Shri Vivek Aggarwal as relied upon by the learned Counsel for the appellant are held not to be admissible into evidence.
9. Coming to the available documentary evidence on record, we find following documents:
1. Panchnama dated 23.10.2017
2. The Departmental Jewelry Appraiser's Report
3. The Tax Invoices 11 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB]
4. Purchase Register/Stock Register of appellant
5. Document as impressed upon to be called as delivery challan.
6. Bank Account Statements
7. Appellant's various letters written to the department during investigation i.e. letter dated 08.11.2017, 22.11.2017 and 08.01.2018.
9.1 From the Panchnama, it is clearly apparent that three gold bars were seized being packed in the paper having marking "KOLHAPUR GOLD LAB" by the Customs Preventive Officers from Shri Ankit Bansal having inscription "RAND REFINERY LTD, SOUTH AFRICA". This perusal is sufficient to hold that no error has been committed by the department by reasonably believing the seized good to be the gold of foreign origin. Such an inscription has otherwise not been disputed by the appellant even at the stage of making final submissions before us. The report of jewellery appraiser which again has nowhere been denied sufficiently proves the weight, purity, serial number and even the lot number of these gold bars. Though learned Counsel has mentioned that the said gold bars were given to Shri Ankit Bansal against a delivery challan and that the same has been suppressed in the Panchnama but perusal of Panchnama shows that all other things as that of Aadhar Card, Voter ID, Driving license of Shri Ankit Bansal, wrist watch (even the brand thereof has also been mentioned), a gold chain, gold ring, currency with its denominations of Rs.16,595/- and some coins have meticulously been recorded as the articles recovered from the personal search of Shri Ankit Bansal. Had he 12 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] been carrying the delivery challan or any diary, as asserted, there seems no reason with the investigating/searching officers to not to mention the same. Mere production of delivery challan on the record at subsequent stage is highly insufficient to prove that the said delivery challan was in possession of Shri Ankit Bansal at the time he was intercepted with three gold bars.
10. Moreover, there is nothing on record to show any reason with those officers to suppress such vital document. Since we have already held that the appearance of gold bars was sufficient to give a reasonable belief to the investigating officers for the seized gold to be the smuggled one, Section 123 of the Customs Act comes into picture. The said Section has been reproduced by Commissioner (Appeals) in para 5.3.1 of the order under challenge. The perusal thereof clarifies that where any good has been seized under the reasonable belief of it being smuggled, the onus is not on the department to prove the goods to be smuggled one, the burden of proof shifts upon the possessor or the owner of the seized gold to prove that the gold is not smuggled. We draw our support from the decision in the case of Indru Ramchand Vs. Union of India reported as 1988 (38) ELT 459 (Del.), wherein it has been held that the fact about the goods to not to be smuggled has to be established by the person from whose possession goods so seized are found. We also relied upon the decision in the case of Santosh Gupta Vs. Union of India 1990 (48) ELT 210 (Bom.), wherein it has been held that no doubt the proceedings under Customs Act being penal in nature the burden is always upon department to establish the case. However, the said proposition does not hold 13 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] good where Section 123 of the Customs Act is having its application. Thus, it was purely for the appellant to prove that the gold was not smuggled and that Shri Ankit Bansal was legitimately possessing the said gold which otherwise was not of foreign origin.
11. To discharge the said burden, the learned Counsel has heavily relied upon his statement and the statements of Shri Pankaj Tayal, Proprietor of Ginni Chain & Jewellers and Shri Vivek Aggarwal, Director of M/s. S.B. Ornaments but as already held above the statements are not admissible. However, from the letters given by the appellant to the department, the defence of appellant is apparent as follows:
1. That the gold seized is the lawfully purchased gold of Shri Mukul Agarwal Proprietor of M/s. Kalindi Traders. The purchase and sale invoices of gold and the other necessary documents including the stock register are impressed upon.
2. Gold is not of foreign origin.
3. The gold bars got locally manufactured through one Bengali Karigar namely Prabhas in presene of said Shri Mukul Agarwal to contain the impurities in the form of ruthenium 2 gms in it so as to get reduce the purity of the gold to 9950.
11.1 In the letter dated 22.11.2017 it is found mentioned that 2994.220 gms of gold of 995 purity from appellant stock was given to said Shri Prabhas Karigar who returned 2998.750 gms of gold in 14 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] form of 3 bars having mixed with the aforesaid impurity. 11.2 The procedure adopted by Shri Prabhas for adding that impurity has also been detailed in the said letter mentioning that the gold of appellant was got melted by Shri Prabhas who after mixing the other melted metals into it put the melted liquid into a sancha/pharma and thereafter inscribed "RAND REFINERY LTD, SOUTH AFRICA" upon it. And to get checked the purity of the gold received after the said process that the same was sent to Delhi through Shri Ankit Bansal.
12. The purity of seized gold i.e. 995 (i.e., 99.5%) is highly been impressed upon by the appellant to have been corroborated even by the departmental appraiser. It is also heavily been impressed upon, that the gold of foreign origin always has purity of 999 (i.e., 99.9%). First of all there is no evidence produced on record that all the gold of "Rand Refinery Ltd, South Africa" has only purity of 999. Secondly, even if that argument is accepted the defence taken by the appellant appears to be contradictory. The purity of seized gold, apparently, and admittedly is 995. This was the purity even after getting the impurity mixed in the gold which was given to Shri Prabhas. From three of the letters of the appellant given to the department the contention of appellant is that the gold which he had given to Shri Prabhas was purchased from M/s S.B. Ornaments, M/s. Jai Laxmi and M/s. N.C. Jewellers.
The invoice by M/s S.B. Ornaments dated 17.10.2017 has been specifically impressed upon. Perusal thereof shows that the gold 15 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] provided by M/s. S.B. Enterprises was the one having purity of
995. Had this gold only been given to Prabhas, the purity of this gold after getting mixed the impurity of other metals could never remain 995, the purity has to decrease to the extent of impurity mixed. This is sufficient for us to hold that the ground taken by the appellant that the gold was not of foreign Origin i.e. of purity 999 but was legally purchased from M/s. S.B. Ornaments stands falsified. It is also apparent from the record that appellants' gold was seized on 23.10.2017 but his first statement of defence reached the department on 13.11.2017 vide his letter dated 08.11.2017. The silence of appellant for almost a fortnight despite that such huge quantity of gold was seized and that his employee from whose possession it was seized got released on bail the very next day of the seizure.
13. We further observe that the appellant has laid emphasis upon the stock register to show that there are the entries of purchase of 3000 gms gold from M/s. N.C. Jewellers, M/s. S.B. Ornaments and M/s. Jai laxmi and also an entry showing that the said gold was given to Shri Prabhas karigar and also to the fact that the excess gold was received from him after impurities got added to said gold. It is apparent that stock register is maintained with respect to purchase and sale of the gold by the appellant. However, to Shri Prabhas karigar the gold was never sold. It is coming up in appellant's letter that Shri Prabhs Karigar had melted the gold in Shri Mukul Aggarwal's presence and after adding the impurity and reformatting, the gold in the form of 3 bars with 16 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] inscriptions of foreign origin and certain serial/lot numbers that the same was handed over to the appellant. In the given circumstances, the entry to and from Shri Prabhas of the gold should not have found mentioned in the stock register. This observation corroborates the observed manipulation of defence by the appellant. The substantial delay in submitting defence is definitely another strong ground to support the observed mala fide on part of the appellant. Three of these letters are miserably silent to justify as to the why gold bars were inscribed with the name of foreign origin i.e. "RAND REFINERY LTD, SOUTH AFRICA".
14. Another major emphasis is upon the fact that no extra gold was found from the appellant premises. But as discussed above that the appellant gained sufficient time to manipulate the defence, it was not difficult for him to shift such gold from his premises as was illegally/unauthorizely obtained/procured by the appellant. The seizure of gold was of 23.10.2017 where as search of his premises was 09.11.2017. It is coming apparent from the show cause notice that gold bars were scratched by the hammering process to know the serial numbers inscriber there upon. The plea taken by the appellant that the serial numbers are same is not sustainable as the process would definitely had rubbed the exact serial numbers, as it can reasonably be presumed about the hammering process. The conduct of the possessor/owner of the seized goods during investigation and his absence for a long time is a sufficient ground to hold that the defence created is an afterthought and is manipulative and that the same is sufficient to 17 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] show that the seized gold is the smuggled gold. We draw our support from the decision in the case of State of Maharashtra Vs. Chidanand Raghuram Tunga reported as 1991 (51) ELT 43 (Bom).
15. In the light of the facts as observed and discussed above, we are of the opinion that the invoices, purchase register, stock register, delivery challan have failed to prove that the gold in question was lawfully purchased by the appellant that too of such a purity which was more than 995. The possibility of all these documents to be subsequently created cannot be ruled out. This inference gets support from the fact that the delivery challan as is mentioned to have been given to Shri Ankit Bansal was not found during his personal search, nothing cogent has been brought on record to prove that the said challan was with Shri Ankit Bansal at the time of search and the seizrue of the gold. In the light of above discussion, even if the statements of the witnesses are not looked into due to the non-compliance of Section 138 B of Customs Act, 1962 but the documents on record are held insufficient to prove the appellant's case. The onus of appellant to prove that the goods were not smuggled goods stands un-discharged. As a result thereof there is no reason to interfere with the findings that the seized gold bars which were having inscription of a foreign origin i.e. "Rand Refinery Ltd, South Africa" is the smuggled gold for want of any document of purchase of foreign origin gold by the appellant. Hence, the allegations in the show cause notice are held to have rightly been accepted by the adjudicating authorities 18 Customs Appeal No. 52289 of 2021 [DB] Customs Appeal No. 51137 of 2022 [DB] below. The confiscation of 3 gold bars is held to have rightly been confirmed. In view of the observed manipulation on the part of the appellant, we do not find any infirmity with the order of imposition of penalty upon Shri Mukul Aggarwal. As far as Shri Ankit Bansal is concerned, he being the possessor of the gold was equally responsible, in terms of the provisions of Customs Act, to have all genuine documents proving the valid possession of the gold having foreign mark with him. Hence, we do not find any infirmity in the order imposing penalty even on Shri Ankit Bansal.
16. With these observations, we hereby uphold the order under challenge. Consequent thereto, both the appeals stand dismissed.
[Order pronounced in the open Court on 23.09.2022] (P.V.SUBBA RAO) MEMBER (TECHNICAL) (DR. RACHNA GUPTA) MEMBER (JUDICIAL) HK