Page 213 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MULCHAND M. ZAVERI v. COMMISSIONER OF CUSTOMS, AHMEDABAD 435

Consignment No. 5 - B/E No. 4080363, dated 14-12-2013
24.3 The messages exchanged from 4-12-2013 onwards indicate that draft
purchase order and draft proforma invoice is sent by Sanjay Patel to Sachin.
On 7-12-2013 Sachin informs that he has 2500 gms. of pure gold of 82.5 touch and
Sanjay Patel advices him to prepare gold mixture of 75% purity. (PK 13429 to
13433) After exchanging further messages, on 12-12-2013 Sanjay Patel in-
forms Sachin that he has sent some money through Swift on 12-12-2013.
These details match with the consignment no. 5 covered by BE No. 4080363,
dated 14-12-2013. The corresponding invoice dated 10-12-2013 indicates an
advance remittance of USD 75,000. This matches with the message dated
10-12-2013, where there is mention about some amount being sent through
Swift as advance. The fact that it was clearly mentioned that the goods of
75% purity are to be prepared and that some quantity of gold was available with
Sachin, clearly indicates that this consignment was also prepared in similar
fashion as consignment no. 3 and 4.
Consignment no. 6 - B/E No. 4137896, dated 20-12-2013
24.4 In messages dated 15-12-2013, it is mentioned that for getting 4 kgs.
of pure gold, the consignment should be of about 11 to 12 kgs. (PK 14299 to
14302). Further an amount of USD 75,000 was transferred to Sachin on 16-
12-2013, which is duly acknowledged by him. Sanjay Patel also asks Sachin
to confirm to the bank that he was to get USD 161144 towards the export
business and show the swift copy so that bank would release the payment.
Certain documents are approved by Sanjay Patel after making changes on
18-12-2013. On 18-12-2013, In WhatsApp message PK 14776, Sachin informs
Sanjay Patel that process on material is still going on. These details match
with consignment no. 6, covered by B/E No. 4137896, dated 20-12-2013.
This B/E has been filed on 20-12-2013 and quantity declared is 11.875 kgs.,
which is between 11 to 12 kgs. as mentioned in the messages. Further, cor-
responding invoice no. MMZ/GSJ/CI-04, dated 18-12-2013 clearly indi-
cates receipt of an advance payment of USD 75,000 against the total amount
of USD 161144 for a quantity of 11.875 kgs.
We agree with the above arguments specifically corroborating the WhatsApp
messages with these imports. The impugned order corroborates the said messag-
es with other evidence and documents. The grounds of appeal do not challenge
the detailed, almost message-wise, corroboration reached by the impugned or-
der. The challenge is very general. The appeal memorandum claimed that there
were no such messages or there is no evidence that the said messages were acted
upon. We find that the appellants have not challenged the recovery of cell phone
under a panchnama and the recovery of messages under panchnama. Even oth-
erwise the statement of Sanjay Patel also supports it. The appellants have not
sough-cross-examination of Sanjay Patel. Cross-examination of all persons whom
they wanted to cross examine was granted under directions of Hon’ble High
Court. We find that the whatsApp messages are sufficiently corroborated and
therefore relevant and admissible. The analysis of the messages shows that the
messages were not only exchanged but the instructions were also executed.
5.6 The messages are further corroborated by the recovery of a cost
sheet during search of the appellant’s premises. The said cost sheet contains de-
tails as follows :

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