Page 152 - ELT_3rd_1st May 2020_Vol 372_Part

374 EXCISE LAW TIMES [ Vol. 372

appellant Shri P. Dilli Raja is the son-in-law of V. Ramachandran. The other ap-
pellant Shri S. Ramki is the nephew of P. Dilli Raja (Maternal uncle of S. Ramki).
All the appellants are of same family and the gold was purchased as gift to son-
in-law Mr. Dilli Raja by V. Ramachandran. He submitted that Mr. Ramki was
travelling from Imphal to Chennai carrying gold to be given to Dilli Raja who is
his maternal uncle. Police had actually intercepted only Mr. Ramki. The allega-
tions that Mr. Ramki and Mr. Dilli Raja were intercepted at the railway station is
incorrect. After being produced before the Magistrate, Ramki and Dilli Raja filed
bail application before the Metropolitan Magistrate Court, George Town. Along
with application, documents (bills) evidencing purchase of gold from Imphal
were also produced. The Magistrate had granted bail to the appellants (Ramki
and Dilli Raja) on 3-3-2014. Later, when the investigation was taken up by the
Customs authorities, appellant had produced bills before the Customs authori-
ties also. Ld. Advocate adverted to para-20 of Order-in-Original dated 17-12-2015
and submitted that the original authority has observed that the appellant had
produced bills to show the purchase of the gold. Department later contended the
appellants had produced only xerox copies which is incorrect. The original bills
were produced before the department and later taken back after substituting
with xerox copies. Thus appellants have established that the gold was purchased
from Imphal. Department also conducted investigation with the sellers as shown
in the bills namely, Rashid Jewellery and Radhika Jewellery, Imphal who admit-
ted that they have sold the gold described in the bills to the appellants. The de-
partment had also verified accounts kept by the sellers and found the carbon
copy of the bills issued to the appellant. These documents would establish that
the appellants purchased the gold from the sellers at Imphal. The allegation that
the appellant has smuggled gold into India is therefore false and without any
factual basis.
3.2 The department has denied to accept the bills stating that they are
produced as an afterthought. He stressed that apart from a small discrepancy
that place of residence has not been mentioned in the carbon copy kept with the
seller, the original bills as well as carbon copy correlate and match fully. When
the seller has admitted sale of the gold to the appellant and when the accounts
maintained by sellers support that gold was sold to the appellants, the depart-
ment ought not to have rejected these evidences. He also adverted to the findings
made by the Commissioner (Appeals) in the first round of litigation. In paras 11
and 12, the Commissioner (Appeals) in the Order-in-Appeal dated 28-9-2017 has
held that there is no ground for brushing aside the bills as not genuine. Commis-
sioner (Appeals) remanded the matter only to verify the bills with the certified
copy of the bail application. Instead, the original authority conducted fresh adju-
dication which is beyond the scope of remand.
3.3 The Ld. Counsel referred to Section 128A of the Customs Act, 1962
and argued that during the relevant period, Commissioner (Appeals) had no
powers to remand. The said section was amended w.e.f. 29-7-2018 whereupon
the powers to remand also was included in the section. However, the appellant
did not appeal against the said order of remand directing to verify the genuine-
ness of bill. The original authority instead of merely verifying the bills produced
by the appellants with that of the certified copy of bail application, conducted re-
adjudication/de novo adjudication which is against the directions of the Commis-
EXCISE LAW TIMES  1st May 2020  152