Customs, Excise and Gold Tribunal - Calcutta
Kapildeo Prasad vs Commissioner Of Customs (Prev.), Patna on 18 February, 2002
Equivalent citations: 2002(142)ELT668(TRI-KOLKATA)
ORDER Archana Wadhwa, Member (J)
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, Patna, vide which he has absolutely confiscated 16 pieces of gold biscuits with foreign markings along with the confiscation of the truck with an option to the owner to redeem the same on payment of a redemption fine of Rs. 40,000.00 (Rupees forty thousand). In addition personal penalties have been imposed upon the various persons under the provisions of Section 112(b) of Customs Act, 1962 as follows : -
(i) Shri Awadhesh Kr. Thakur - Rs. 10,000.00
(ii) Shri Kapildeo Prasad - Rs. 50,000.00
(iii) Shri Vijay Kumar - Rs. 20,000.00
(iv) Shri Brij Kishore Parit - Rs. 1,000.00
2. As per facts on record, the Customs Officers intercepted one truck on 15-3-98 at Mahatma Gandhi Setu on Ganga River at Patna found to be loaded with wheat. However, the search of the cabin of the said truck resulted into recovery of two packets wrapped in black tape. Shri Awadesh Kr. Thakur who was present in the said truck confessed that the packets were kept in the box by him and each packet contained eight pieces of gold biscuits of foreign origin. He also added that the driver or the khalashi was not having any knowledge about the said packets. The Officers on a reasonable belief that the gold in question was smuggled, seized the same.
3. Shri Awadesh Kr. Thakur in his interrogatory statement deposed that the gold in question belonged to one Shri Vijay Kumar, son of Shri Kapildeo Prasad and was handed over to him by Shri Kumar with direction to go to Ramgarhwa, sit in the truck and then to go to Patna in the same truck. The statements of the driver and the khalashi of the truck, were also recorded. Shri Awadesh Kr. Thakur was arrested and was remanded to the judicial custody.
4. During post-seizure investigations, statements of various persons were also recorded. Shri Kapildeo Prasad filed a petition on 31-3-98 to the Commissioner of Customs, Patna claiming ownership of the seized sixteen gold pieces of foreign origin, and submitted that the same were purchased by him legally from M/s. Chauhan Zevares Pvt. Ltd., Karol Bagh, New Delhi, vide Sale Voucher No. 135, dated 11-3-98. He also stated that he returned to Raxaul on 12-3-98 and directed his son to instruct Shri Awadesh Kumar Thakur regarding carrying of the said sixteen pieces of gold biscuits to Patna. On coming to know about the seizure of the biscuits, he contacted Shri Thakur in jail, who told him that the sale voucher was shown to the officers who refused to take note of the same. With the Petition, Shri Kapildeo Prasad submitted the copy of the Voucher No. 135, dated 11-3-98 issued by M/s. Chauhan Zevares Pvt. Ltd. along with the copy of the Demand Draft dated 25-3-98 issued in favour of Chauhan Zevares for consideration of the sixteen gold biscuits. It was also stated that M/s. Chauhan Zevares is an Export Oriented Unit and a Special Import Licence.
"4. As a result of the above disclosure made by Shri Kapildeo Prasad, M/s. Chauhan Zevares were contacted. Shri Rontty Chauhan of M/s. Chauhan Zevares admitted having sold the sixteen pieces of foreign marked gold biscuits to the appellant, Shri Kapildeo Prasad, and also submitted that the gold in question was imported by M/s. Kan Karan Impex, Delhi who sold the same to M/s. Chauhan Zevares through voucher No. 1, dated 14-12-98. Shri Rontty Chauhan also submitted that the said foreign origin gold "T.T. Bars" were imported by M/s. Kan Karan Impex, Delhi from Al Dhahab Jewellers of Sharjah, U. A.E. He also submitted the invoice of Al Dhahab Jewellers of Sharjah, U.A.E. dated 6-8-97 in the name of M/s. Kan Karan Impex, Delhi.
5. Based upon the above facts, the appellants were served with a show cause notice proposing confiscation of the seized gold biscuits and the truck since released provisionally to the owner, as also for imposition of personal penalties upon the various persons. The said notice culminated into the impugned Order passed by the Commissioner.
6. I have heard Shri B.N. Chattopadhyay, learned Consultant for the appellants. Shri Chattopadhyay submitted that the appellants had purchased the gold biscuits from M/s. Chauhan Zevares Pvt. Ltd. in the ordinary course of his business and there was a legal document issued by the said M/s. Chauhan Zevares for showing the sale of the gold biscuits to the appellants. He submitted that M/s. Chauhan Zevares have admitted having sold the biscuits to the appellants and has further clarified that they have purchased the same from M/s. Kan Karan Impex, Delhi who had imported the same from (sic) ... He submitted that the Revenue has not made any further enquiries with M/s. Kan Karan Impex and has dismissed the documentary evidence produced by Shri Kapildeo Prasad on flimsy grounds by pointing out to certain discrepancies.
7. Referring to the reasoning adopted by the adjudicating authority, Shri Chattopadhyay, learned Consultant submitted that the Commissioner has wrongly dismissed the documentary evidence produced by the appellants on the ground that the same was not produced at the time of interception and as such, was an after-thought. He submitted that apart from the fact that Shri Awadesh Kumar Thakur produced the sale voucher of M/s. Shree Jewellers at the time of interception which was not taken note of by the Customs, there is no requirement to accompany the gold biscuits of foreign origin with the legal covering documents at all times. He submits that no rule of law requires that the transportation of the gold biscuits should always be under the cover of the documents showing legal acquisition and possession of the same. As such, the rejection of the documents produced by the appellants on the ground that the same being an after-thought, is not justified.
8. He, further, contended that the Commissioner has observed that there is a discrepancy in the description of the gold in question. Whereas the voucher of M/s. Chauhan Zevares shows that the goods sold to the appellants was "T.T. Bars (116.640 foreign marked)", the goods seized by the Officers are gold biscuits weighing 1868.800 gms. and of purity -- 998.7, 998.8 and 998.9, as certified by the India Government Mint, Calcutta. He has, further, observed that the sale voucher of M/s. Chauhan Zevares shows that the sixteen pieces were totally weighing 1866.240 gms. and were of purity 999.00. From this he concluded that the documents produced by the appellants are not covering the seized gold in question. Shri Chattopadhyay, learned Consultant submits that in commercial parlance, there is no difference between the biscuits and the bar. "T.T. Bars" is an abbreviation form of gold biscuit of 10 tolas. As regards weight, he submitted that the bar of foreign origin of 10 tolas has a standard weight of 116.640 gms. As such the total weight of the 16 pieces has been shown as 1866.240 gms. in the sale voucher of M/s. Chauhan Zevares. The difference in weight made by the Customs showing a difference of about two grams, is a human error. Similarly, he submits that all foreign gold biscuits are of a standard purity of 999.00 and the test report of the India Government Mint showing the purity of little less than 999.00 is nothing but the result of human error. In any case, he submits that there appears to be no doubts about the genuineness of the sale voucher by M/s. Chauhan Zevares Pvt. Ltd. and as such the rejection of the same by the adjudicating authority on a minor pseudo-discrepancy is not warranted.
9. Shri Chattopadhyay, further, submitted that M/s. Kan Karan Im-pex, Delhi are said to have imported 16 T.T. Bars from M/s. Al Dhahab Jewellers, Sharjah. He submitted that instead of making further enquiries, the invoice of M/s. Al Dhahab has been rejected on the ground that the same bears no endorsement as regards the payment of Customs duty and is also on a letter-head and is not a regular invoice. By referring to the various decisions, he submits that the importation of gold biscuits is legalised as a result of the liberalisation policy, and the Tribunal has held in a number of cases that in the absence of any law requiring the seller of gold biscuits to write or make any particulars of the gold biscuits in the sale vouchers, the same cannot be confiscated on the ground that the documents do not show any correlation with the seized gold. He relied upon a number of decisions of the Tribunal.
10. I have also heard the learned J.D.R., Shri A.K. Pandit for the Revenue.
11. The gold biscuits seized from Shri Awadesh Kr. Thakur have been confiscated by the adjudicating authority after rejecting the documentary evidence produced by the appellants showing the legal purchase of the same from M/s. Chauhan Zevares Pvt. Ltd. and by referring to certain discrepancy in the said document of the seized gold biscuits. However, I find that the discrepancies referred to by the adjudicating authority are not real inasmuch as he has held that whereas the sale voucher shows the goods to be "T.T. Bars", the seized gold is biscuit, He has thus observed that such descriptive variation between the biscuits and the bars raises a reasonable doubt regarding the genuineness of the transaction. The appellants have contended that biscuits and the bars are synonymous terms used by the persons dealing in gold and are interchangeable "T.T. Bars" represent ten tola bars which are also referred to as biscuits. The Commissioner in his impugned Order has nowhere observed as to what is the difference between a biscuit and a bar. Similarly, as regards weight, I find that there is a variation of about 2 gms. in the weight of all the sixteen pieces of gold. The standard 10 tola bars weigh 116.640 gms, and as such, the total weight of 16 pieces of biscuits would come to 1866.240 gms, which is reflected in the sale voucher of M/s. Chauhan Zevares. Similarly, it is a matter of common knowledge that the standard purity of gold is 999.00. As such, as rightly contended by the learned consultant, the small variation in the weight or in the purity of gold is attributable to the human error and cannot be made the basis for rejecting the sale voucher of M/s. Chauhan Zevares who have admitted to have sold the goods to the appellants. This has also been observed by the Commissioner that M/s. Chauhan Zevares have subsequently stated that they were not sure that the gold under seizure was the same as was purchased from them. Naturally a person who has sold the gold, cannot confirm whether the gold seized by the Customs Officers from that person, is the same gold or not. But the said statement made by M/s. Chauhan Zevares further confirms that the sixteen pieces of gold were, in any case, purchased by Shri Kapildeo Prasad from the said M/s. Chauhan Zevares Pvt. Ltd.
12. The Tribunal in the case of S.K. Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) E.L.T. 415 (Tri. - Mum.) observed as under :-
"7. Thus, today there exists a very peculiar 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 flood 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 register nor is there any requirement to issue invoices under any Central Act.
13. In the case of Sri Samir Kumar Roy & Ors. v. C.C. (Prev.) West Bengal, Calcutta - decided by the Tribunal in Order No. A-475-478/Kolkata/2001, dated 4-7-2001 [2001 (135) E.L.T. 1036 (T)], the Tribunal has considered the effect of liberalised policy as regards the import and dealing in gold and thereafter, concluded that onus as placed under Section 123 was discharged when the appellants produced the sale/purchase vouchers showing the sale of the goods from the gold dealer who has admitted having sold the same. In the absence of any requirement of law requiring the gold dealers enjoying the sale/purchase of foreign-marked gold in India, to indicate the brand names of the same in the sale/purchase vouchers, the sale documents produced by the appellants cannot be dismissed on the said ground. In the instant case also, we find that the entire chain of sequence starting from importation of gold biscuits of M/s. Kan Karan Impex, its sale to M/s. Chauhan Zevares and further sale to Shri Kapildeo Prasad, is established. As such, taking the said factor into accounts, I am of the view that the onus cast upon the appellants under the provisions of Section 123 stands fully discharged. The confiscation of the gold biscuits is not called for. Accordingly, I set aside the same.
14. Inasmuch as the confiscation of the gold biscuits has been set aside, the confiscation of the truck is not called for. For the similar reasons, there is no warrant for imposition of penalties upon the various persons. The same is, accordingly, set aside.
In a nutshell, all the appeals are allowed with consequential reliefs to the appellants.