SH. VIJAY KUMAR JAIN Vs. CC SHILLONG

JUDGEMENT

(1.) The issue involved in this appeal, tiled by Shri Vijay Kumar Jain, is whether the gold biscuits bearing foreign mark seized from the possession of Abdul Rahim are liable to confiscation and whether penalty is imposable on the Appellant.

(2.) Shri J.S.Agarwal, ld. Advocate, submitted that Appellant had been dealing in various good under the name and style of M/s Mohan Ceramics at Jodhpur since 1993; that in December 1995, he commenced trading in gold bullion also, that he had purchased 11 gold biscuits from M/s Sanghvie Enterprises Mumbai under Bill Nos. 210 and 202 dt. 27.11.1996 on cash payment; that in order to get better price, he had sent 11 gold biscuits with his employee Abdul Rahim to shillong for sale through one dealer G.C.Goel; that as said Goel and his son Sanjay Goel were out of Station, Abdul Rahim started his journey back to Jodhpur and he was intercepted on 2 -2 -1996 at Paltan Bazar, Guwahati and gold biscuits were seized under the Customs Act; that the Commissioner of customs, under the impugned Order, confiscated the gold and imposed a penalty of Rs. 50,000 on him besides imposing penalty on Abdul Raim (Rs. 25000) and Sanjay Goel (Rs. 1 Lakh) holding that the gold biscuits were smuggled one. The ld. Advocate, further, submitted that the Appellant had produced bill Nos 201 and 202 of M/s Sanghvi Enterprises, Bombay to the Officers on 22 -2 -96 at Jodhpur in support of lawful purchase of the impugned gold biscuits; that M/s Sanghvi Enterprises has at the time of enquiries shifted their palace of business from 13 Rungta House, Mumbai to 55, Jhaveri Bazar, Mumbai and these fact was duly intimated by him under his letter dt. 10 -4 -1996 and in reply dt. 29 -11 -66 to the show cause notice; that the affidavit of Shri Sunder Lal, Proprietor of Sanghvi Enterprises dt. 26 -6 -96 was also submitted with the reply; that despite the information of new place of business, the Department did not make proper enquiries from Sanghvi Enterprises and the Adjudicating Authority rejected the bills on the ground that Sanghive Enterprises was not existent. The ld. Advocate also mentioned that relied upon documents were not furnished to the Appellant which was specifically mentioned in his letter dt. 5 -8 -1996, followed by letter dt. 13 -9 -96 and in his reply dt. 29 -1 -1996 to the show cause notice.

(3.) The ld. counsel, further, mentioned that Section 123 of the Customs Act was not invoked in the show cause notice and as such the burden to prove that the impugned gold biscuit are of smuggled nature is on the Department which has not been discharged; that there is absolutely no mention in statements dt. 2 -2 -1996 of Abdul Rahim and statements dt. 3 -2 -1996 and 7 -2 -1996 of Shri Sanjay Goyal that the gold biscuit in question were smuggled gold biscuits; that except for retracted statement of Abdul Rahim and statement of Sanjay Goyal recorded under duress while they were incustody, there is no independent reliable evidence to sustain the allegation of gold being smuggled one. He relied upon the decision in the case of Shanti Lal Soni Vs. C.C.Jaipur, 1995(78) ELT 151(T) wherein it was held been made during illegal custody and having been retracted at the first available opportunity leads to the conclusion that is was not true and voluntary."