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420 EXCISE LAW TIMES [ Vol. 372

from Wikipedia. He argued that report of IIT Bombay does not rely on an au-
thentic material or literature. Learned Counsel further pointed out that while the
impugned order suggests that -
(i) Natural Gold Nuggets had a wax like yellow colour,
(ii) that the sample of gold metal in question did not show pits or cavi-
ties/craters and had smooth surface,
(iii) that trapped minerals and regular spiked features were usually ab-
sent in Natural Gold Nuggets,
but had failed to cite any authentic literature in support of this observation.
2.3 Learned Counsel further pointed out that Dr. Mathew had given his
observation about the ‘wax like yellow color’ merely an eye examination obser-
vation. No equipment/machinery was used to arrive at this observation regard-
ing the testing of the samples.
2.4 He further pointed out that the report of IIT Bombay was inconclu-
sive about presence of cement in the sample. The report stated that while pres-
ence of the cement was not detected, use of some form of cement was not ruled
out. He pointed out that the nature of report creates doubt that when no cement
was present still the Professor observed the use of cement cannot be ruled out.
1 2.4 Learned Counsel pointed that while Revenue has taken sample of
the import made vide Bill of Entry No. 4434128, the same cannot be applied to
past imports made by the appellant. Learned Counsel clarified the present de-
mand relates to only 14 bills of entry as one import was made through Mumbai.
Learned Counsel argued that Revenue had earlier taken samples in the past and
therefore, it is not open to Revenue to rely on the report received on the basis of
sample taken in the consignment which was seized. He argued that the report of
Professor IIT at best can be applied to Bill of Entry No. 4434128 only. He argued
that in this background, attempt to re-classify the goods, covered in the past im-
ports is illegal and without jurisdiction.
2.5 Learned Counsel pointed out that Revenue has heavily relied on
WhatsApp messages recovered from the mobile phone of Shri Sanjay Patel. He
argued that the said messages are not admissible as evidence and the messages
do not establish that the partner of the appellant firm had instructed any person
to prepare the goods for import in such a manner that they appeared like Natural
Gold Ore Concentrates. Learned Counsel argued that there is no evidence show-
ing that the instructions, advices appearing in the WhatsApp message were for
the goods imported by the appellant and covered under bills of entry listed at
Annexure-A to the show cause notice. He further argued that there is no evi-
dence on record that advices and instructions allegedly given by Shri Sanjay Pa-
tel to Shri Sachin, the supplier abroad were actually carried out or implemented.
He argued that mere presence of Whatsapp messages does not prove that sup-
plier had actually carried out all the activities mentioned in the Whatsapp.
Learned Counsel argued that while Whatsapp messages indicate that Shri Sachin
was required to mix silver, zinc, cadmium, copper etc. but cadmium and zinc
were not found in the metal portion of the sample tested by IIT, Bombay. He ar-
gued that alleged instructions were not followed.
2.6 Learned Counsel further pointed out that demand of differential
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1 Paragraph number as per official text.
EXCISE LAW TIMES  1st May 2020  198