Custom, Excise & Service Tax Tribunal
Shri Shiv Jee Prasad Gupta vs Commissioner Of Central Excise & ... on 9 November, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal Nos. Cus.Ap.478-479/09
(Arising out of Order-in-Appeal No. 72 & 73/PAT/CUSTOMS/APPEAL/2008 dated 09.05.2008 passed by the Commissioner(Appeals) of Customs & Central Excise, Patna.)
FOR APPROVAL AND SIGNATURE
HON'BLE SHRI S.S. KANG, VICE PRESIDENT
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT(Procedure) Rules, 1982 for publication in any
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Shri Shiv Jee Prasad Gupta
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise & Customs, Patna
Respondent (s)
Appearance:
Shri Shiv Jee Prasad Gupta (In person) for the Appellant (s) Shri R.K. Chakraborty, Authorized Representative (SDR) & Shri Aftab Alam, Supdt. Of Customs H.Q., Patna for the Revenue CORAM:
Hon'ble Shri S.S.Kang, Vice President Date of Hearing/Decision :- 09.11.2009 Date of Pronouncement :- 09.11.2009 ORDER NO............................................................................
Per Shri S.S.Kang.
1. Heard both sides.
2. Both the Appeals are arising out of the seizure of gold on 08.12.1990 from the two persons namely Shri Jay Prakash Verma and Shri Parsuramjee and present Appellant claimed the gold in both cases therefore are being taken up together.
3. Briefly stated the facts of the case are that on 08.12.1990 two persons namely Shri Jay Prakash Verma and Shri Parsuramjee were apprehended at the land customs station at Indo-Nepal border. Both the persons came from Nepal. Shri Jay Prakash Veram and Shri Parsuramjee disclosed to the customs officers that they had kept concealed gold in their rectum which was purchased from shop No.261, Vishal Market, Kathmandu and they also disclosed that they are employees of Shri Shiv Jee Prasad Gupta, the present Appellant and they were carrying this gold at the instruction of the present Appellant. Thereafter gold of 424 gms. were recovered from Shri Parsuramjee and 259 gms. from Shri Jay Prakash Verma. Thereafter summons were issued to the present Appellant Shri Shiv Jee Prasad Gupta and the present Appellant appeared on 14.01.1991 before the investigating officer where specific question was put to him regarding the seized gold and the present Appellant simply replied that he is unable to understand the matter correctly. Therefore show cause notice was issued on 05.03.1991 for confiscation of the gold and for imposition of penalties on Shri Jay Prakash Verma, Shri Parsuramjee and the present Appellant. The detailed reply was filed and in reply the present Appellant claimed the gold. The adjudicating Authority confiscated the gold and imposed the penalties. Present Appellant filed Appeal before the Commissioner(Appeals) and the same was dismissed. On Appeal filed by Appellant the Tribunal vide order dated 19.11.2007 remanded the matter to the Commissioner(Appeals) to decide afresh.
4. Vide impugned orders the Commissioner(Appeals) dismissed the Appeals filed by the Appellant.
5. The main contention of the Appellant is that he is dealing in gold and gold ornaments and the gold in question was handed over to Shri Jay Prakash Verma and Shri Parsuramjee to deliver at Raxaul to one Shir Ajay Sarraf for making ornaments. He is the lawful owner of the gold in question. The gold is of Indian origin as there is no foreign marking on the gold. The contention is also that Shri Jay Prakash Verma and Shri Parsuramjee were his employees and in his reply to the show cause notice both retracted from their statements made before the Customs Officers at the time of recovery of gold therefore retracted statements cannot be relied for confiscation of gold and for imposition of penalty. The Appellant also submitted that they filed a Recovery Suit against the Customs Inspector in respect of some quantity of gold which was embezzled.
6. The contention of Revenue is that Shri Jay Prakash Verma and Shri Parsuramjee was apprehended at the land customs station when they were coming from Nepal and both disclosed that they concealed the gold in their rectum and the same were recovered. Both the persons from whom the gold was recovered never retracted from their statements. It is only in reply to the show cause notice dated 11.04.1991 they made the retraction. It is also submitted that the investigation was conducted from Shri Ajay Sarraf the person named by the present Appellant to whom the gold was to be delivered as mentioned in the reply to the show cause notice and Shri Ajay Sarraf admitted the relationship with the Appellant. However, he denied that any gold is to be received by him for making gold ornaments. In these circumstances the contention of Revenue is that as the gold was recovered from Shri Jay Prakash Verma and Shri Parsuramjee which was kept concealed in their rectum and both of them disclosed that the same was purchased from Kathmandu and even the shop number was disclosed. Both of them disclosed that they are acting under the instruction of the present Appellant therefore the impugned order is rightly passed.
7. In these proceedings I am concerned with the gold recovered from Shri Jay Prakash Verma and Shri Parsuramjee which was kept concealed in their rectum and both were apprehended at the land customs station while they were coming from Nepal. In their statement under Section 108 of Customs Act both admitted that the same was being smuggled from Nepal at the instruction of the present Appellant. The statement made under Section 108 is admissible in evidence as held by Hon'ble Supreme Court in the case of Naresh J. Sukhawani vs. UOI - 1996 (83) ELT 258(S.C.). The persons from whom the gold was recovered never retracted from their statements. Only in reply to the show cause notice the denial was made. Both the persons from whom the penalties were imposed never challenged the findings of the adjudicating Authority nor filed any Appeal against the imposition of penalties. It is only the present Appellant who is pursuing the issue for return of the gold and for setting aside the imposition of penalty. The contention is that the gold was handed over to both the persons to deliver the same to one Shri Ajay Sarraf. The Appellant was summoned by the investigating officer and in his statement dated 14.01.1991 the Appellant had not made any claim regarding the ownership of gold. In a specific query by the investigating Officer the Appellant simply stated that he is unable to understand the matter correctly. The Appellant claimed the gold first time in his reply to the show cause notice and stated that the same were to be delivered to Shri Ajay Sarraf. On this enquiry was made from Shri Ajay Sarraf and vide statement dated 26.08.1991 Shri Ajay Sarraf admitted the relationship with the Appellant, however denied the fact that he has to receive the gold from the Appellant for making ornaments. During arguments a specific query was made to the Appellant, who appeared in person, whether the Appellant was regularly sending the gold to Shri Ajay Sarraf for making ornaments. The Appellant replied that it was the first time he has sent the gold for making ornaments. In these circumstances as the persons from whom the gold was recovered that too from their rectums had not challenged the findings of the adjudicating Authority regarding recovery of the gold at land customs station. The present Appellant claimed the gold only in reply to the show cause notice and during investigation had not made any such claim though summons were issued to the Appellant. The claim of the Appellant is also not sustainable on the ground that Shri Ajay Sarraf to whom the gold was sent denied this fact and though he was related to the Appellant. In these circumstances I find no infirmity in the impugned orders and Appeals are dismissed.
(Pronounced and dictated in the open court.) sd/ (S.S.KANG) VICE PRESIDENT sm 6 Appeal No.Cus.Ap.478-479/09