Page 155 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] S. RAMKI v. PRINCIPAL COMMISSIONER OF CUSTOMS, CHENNAI-III 377

after a week of selling the gold, the customer came back to his shop and re-
quested to fill up the name and address in the said bills. This explains the
slight difference in the name mentioned in the original copy and the book
copy of these bills. In case of purchase of gold bangles from Shri Radhika
Jewellers also no serious discrepancy has been pointed out except stating
that the proprietor of M/s. Radhika Jewellers stated that the gold bangles
sold from her shop were of 22 carat approximately, whereas on assaying
the gold bangles, the gold was found to be of 24 carat purity. However, this
is not enough to brush aside the bill towards the purchase. Although gold is
notified under Section 123 of Customs Act and accordingly burden of proof
gets shifted to the owner of such gold to prove that the same is not of
smuggled nature, but in this case, the appellants have produced the bills
under which they purchased the gold. On enquiry from the person issuing
these bills, it is found that these have indeed been issued by them except for
a minor variation in the name mentioned, for which the adequate explana-
tion is given. In the case laws relied upon in the impugned order, the bills
produced for showing licit purchase of the gold were found to be fictitious
or the person shown as the one who issued the bill, has disowned issuing
the bill. Therefore, the ratio of such case laws would not apply in the facts
of the present case.
12. In the instant case, no investigation has been carried out on how the
gold biscuits were acquired by M/s. Rashid Jewellers and whether these
were of a smuggled nature. The proprietor of M/s. Rashid Jewellers, in his
statement, has stated that he acquired the gold from mortgage or from buy-
ing in the market. In the absence of the further investigation to show that
M/s. Rashid Jewellers purchased the smuggled gold biscuits, it cannot be
said that the gold biscuits found in the possession of the appellants were of
smuggled nature.
13. However, to bring the case to a definite conclusion, it would be neces-
sary to cause enquiry by obtaining the certified copy of the bail application to as-
certain whether the impugned bills were available at the time of remand of the ap-
pellants after they were arrested by the police to rule out that the same were created
on a later date. Accordingly, I set aside the impugned order and direct the
LAA to ask the appellant to submit the certified copy of the bail application
and also verify from the records of the case as to whether the impugned
bills submitted along with the statements to the Customs Authorities were
certified copies obtained from the Court records. If the same are certified
copies and referred to in the bail application, then the case for confiscation
of gold and imposition of penalty on the appellants would not stand.
The appeals are disposed of in the above manner.”
9. The Commissioner (Appeals) thus concluded that there is no ground
to reject the bills as evidence. The doubt entertained by Commissioner (Appeals)
and his decision to remand is reflected from the discussions made by him in para
10 of this order. The appellants had not produced certified copy of the bail appli-
cation. The appellants contended that they had produced the bills as early as at
the time of filing bail application. On perusal of the bail application produced
before him, the Commissioner (Appeals) found that the bail application was not
a certified copy obtained from Magistrate Court and so in order to verify wheth-
er they had submitted the bills immediately after the arrest and applying for bail,
the Commissioner (Appeals) remanded the matter to LAA to look into the certi-
fied copy of the bail application and to ascertain whether the bills have been
EXCISE LAW TIMES  1st May 2020  155