SRI SANJAY KUMAR Vs. COMMR. OF CUSTOMS

JUDGEMENT

(1.) HEARD Shri B.N. Chattopadhyay, ld.Consultant for the appellants and Shri J.R. Madhiam, ld.JDR for the respondents.

(2.) SHRI Chattopadhyay submits that 19.5.98, some Customs Officials visited the appellants' shop -cum -working premises at Hazipur and searched the same. They recovered one primary gold weighing 138.01 gm., one cut piece of gold bar weighing 97.120 gms., one cut piece weighing 36.880 gms. And one piece of primary gold weighing 48.490 gms. The total weight of the gold seized was 370.5 gms and the total value of the gold is Rs. 1,56,610/ -. It would appear from the seizure list that one piece of gold had the inscription as "Goldsmith Refinery Ltd., Hingfung" weighing 138.01 gms. The other piece had the inscription of Degussa, Singapore weighing 97.120 gms and the other two pieces of gold weiging 36.880 gms and 48.490 gms had no inscription. The purity of the gold was found by I.G. Mint, Alipore were 999.0, 998.7, 996.0 and 889.5 per mile. He submits that the appellant had purchased two pieces of foreign gold bars from the broker who was not known to him. He submits that two pieces of gold bars which have got no marks of foreign origin and the purity of which is much below the purity of the foreign gold, namely, 996.0 and 889.5 cannot be treated to be of gold of foreign origin. He further submits that the onus of the Department to prove that the gold is of foreign origin. With regard to the two pieces of gold bars having marks with "Goldsmith Refinery Ltd., Hingfung" and M/s Degussa, Singapore, they are not of common brand of gold which are generally imported. The weight of the gold bars are not also commensurate with the gold which are ordinarily imported. He submits that the appellant could not produce any documents towards acquisition of the said two gold bars. He submits that with the liberalization of the Government with regard to importation of gold through authorized agencies and through the passengers as baggages, plenty of foreign gold bars are available in the market There is no restriction on purchase and sale of gold bars. With the abolition of Gold Control Act, 1968 in June, 1990, there is no obligation on the gold dealers to maintain an account in respect of acquisition of the gold and their disposal. He submits that this has been held by the CEGAT's decision in the case of S.K. Chains v. Commr. of Customs (Prev.), Mumbai . He submits that in the case of Samir Kr. Roy v. CCE, Calcutta reported in 2001 (135) ELT 1036, it has been held that the statement of seller of gold is sufficient to show legal acquisition. Mere foreign marking on the gold bar is not sufficient to presume that the gold was smuggled one. He relies on the decision in the case of Jitendra Pawar v. Commr. of Customs, Raipur (T). He submits that the appellant had purchased two gold bars from the brokers who visited shop premises. On banafide belief, there is no evidence that the gold was smuggled one or illegally imported into the country. He further submits that the Tribunal in a number of cases have released the gold bars of foreign origin on payment of redemption fine and imposition of penalty commensurate with the offence. He relies on the decision in the case of Suresh Kr. Raisoni and Ors. v. CCE, Mumbai reported in 2004 (114) ECR 44 (T) in which case the gold biscuits valued at Rs. 22,26,000/ - were confiscated but redeemed the confiscated gold on payment of a fine of Rs. 5.00 lakhs. Penalty was imposed on three persons at Rs. 1,00,000/ - to Rs. 50,000/ -. He further relies on the decision rendered in the case of Nanalal K. Jain v. CCE, Mumbai reported in 2000 (124) ELT 401 (T). He, therefore, submits that two pieces of gold bars having foreign inscription may be released on payment of redemption fine and on payment of appropriate duty. He, therefore, submits that the appeal may kindly be allowed.

(3.) SHRI Madhiam supports the impugned order.