Page 214 - ELT_3rd_1st May 2020_Vol 372_Part

436 EXCISE LAW TIMES [ Vol. 372

Sr. Detail Amount $
No.
1. Pure gold Bar (995) 1237 $ = $ 126619/FOR 0.995 KG 3.200 126619
PURE GOLD
2. Transguard $ 430 (5 KGS) + 1 (over weight 5 kg) $490 490
3. Kaloti Test Report $18 18
4. Silver Metal (for mixing) = $28 28
5. Melting charges & other metals used like zinc cadmium and 140
copper = $ 140
6. Packing material = $15 15
7. Cement + color = $2 2
8. RedSoil=$28 28
9. Total of Above=$ 126616 Gross 127340
10. Exporters Commission (0.5% of above) $ 633 637
11. Total = = $ 1272249 127977
12. Insurance (Door to Airport) = $ 19 19
13. Grand Total = 127268 $ 127996
14. Rounded to = $ 127270/9,555 gms Ores & Concentrates 128000

The said cost sheet shows the various materials that go into preparation of the
fake gold ore. It was recovered from the appellants premises. This sheet clearly
shows that fake gold ore was being manufactured. Thus the said cost sheet also
corroborates the facts detailed in the WhatsApp messages.
5.7 Even before the Hon’ble High Court the appellants did not seek
cross-examination of Shri Sanjay Patel. After the directions of Hon’ble High
Court to cross examine the persons they wanted to cross examine, Shri Sanjay
Patel denied the statement and the messages. No argument or evidence or reason
was given in support of denial of statement or WhatsApp messages. It is not de-
nied that the mobile phone and the whatsApp messages were recovered under a
Panchnama. The appellants have not challenged the Panchnama at any stage nor
have sought any cross-examination of Panch witnesses. In these circumstances
their challenge to the recovery of mobile phone and the WhatsApp messages is
dismissed.
6. Revenue has placed reliance on the report of the Professor of IIT,
Bombay. The appellants have sought to discredit the said report during cross-
examination of the author of the report. We find that the comparison of the parame-
ters of the imported material with the parameters of ‘ores’ do not influence the outcome of
the case in any significant manner. Even if the goods imported by appellants answer to
all physical/chemical parameters of ‘ore’ can they still be called ‘Ore’. From the discus-
sion above it is apparent that if the goods are not extracted from mines but are produced
artificially the same cannot be classified or described as ‘ores’.
6.1 The Principal Commissioner has relied on the test report. It needs to
be noted that even if the test report showed that the samples answered to all the physical
and chemical parameters of the ‘ore’. the sample cannot be called ‘Ore’ if it is not of natu-
ral origin. The report reads as follows :-
(I) Chemical Analysis of Gold Metal
(a) A real gold nugget has a wax like yellow color, however, the
present samples do not show waxy luster and show brighter
yellow with pale pinkish shade.
EXCISE LAW TIMES  1st May 2020  214