Page 197 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MULCHAND M. ZAVERI v. COMMISSIONER OF CUSTOMS, AHMEDABAD 419

Whatsapp messages were recovered from the mobile phone of Shri Sanjay Patel.
Certain other incriminating documents were also recovered from the premises of
appellant. Statement of Sh. Sanjay Patel was also recorded. Statement of Shri
Mohanlal S. Jadia, whose shop was used to process the material imported by the
appellant, was also recorded. Based on these evidences a SCN was issued alleg-
ing that the appellants had not imported the ‘Natural Gold Ore Concentrate’ but
had artificially mixed gold and various materials like mud, cement etc. to artifi-
cially create something that could be camouflaged as ‘Natural Gold Ore Concen-
trate’. The demand of duty, confiscation and penalties were confirmed against
the appellants. Aggrieved by the said order the appellants are before the Tribu-
nal.
2.1 Learned Counsel pointed out that during January, 2014 to July,
2014, statement of various persons including that of Shri Sanjay Mulchandbhai
Patel was recorded by DRI authorities. A sample of the product was examined
by a expert from IIT Mumbai. Learned Counsel pointed out that a show cause
notice was issued by ADG, DRI, Ahmedabad alleging that the goods covered
under Bill of Entry 4434128 were not “Gold Ore/Gold Ore Concentrate” classifi-
able under CTH 2616 90 10 but the goods were “Gold” classifiable under CTH
7108 13 00 and hence not eligible for exemption and also liable for confiscation.
The same allegations were made in respect of imports made in the past, under
different 14 consignments made during July, 2013 to January, 2014. Duty in re-
spect of previous consignments imported through Ahmedabad Customs was
also demanded. In the notice, Revenue also relied on the role of Shri Mohanlal S.
Jadia whose shop was used to process the material imported by the appellant.
Learned Counsel pointed out that Shri Shailesh Kumar H. Patel, Director of CHA
firm and clarified that he had never seen the goods imported earlier. However,
Shri Rohit Harishrao Jadav, Senior Executive of CHA, during cross-examination
confirmed that he had seen the goods in the past; that Customs officers used to
permit to opening of package for the purpose of control of samples for valuation
by the Government approved valuer. Shri Rohit Harishrao Jadav also stated that
his observation that past imports were similar to the current import was based
on physical appearance only and he cannot be 100 per cent. certain in this regard.
2.2 Learned Counsel pointed that Revenue had relied on the report of
Dr. George Mathew, Associate Professor at Indian Institute of Technology (IIT
for short), Bombay. He pointed out that there were a lot of error in the report
made by the Professor and for that purpose he relied on the record of the cross-
examination of Dr. George Mathew. Learned Counsel pointed out that the de-
mand, penalties and confiscation was upheld by the Commissioner despite the
fact that they had pointed out various lacunae’ in the report of the Professor of
IIT, Mumbai. In this background of facts, Learned Counsel argued that the report
of Dr. Mathew that the sample tested by them was ‘not naturally occurring’, is
incorrect and cannot be relied on. He pointed out that while the report of IIT Pro-
fessor stated that in native gold, the gold content should be 90 per cent. and dur-
ing cross-examination, he stated that gold content in the native gold varied from
70 per cent. to 90 per cent. Learned Counsel pointed out that in the sample tested
by IIT Bombay, the gold content found to 79 per cent. which falls within the
range of the native gold i.e. 70 per cent. to 90 per cent. Learned Counsel pointed
out that the report of IIT Bombay extracts the meaning of ‘Natural Gold Nuggets’
EXCISE LAW TIMES  1st May 2020  197