Page 218 - ELT_15th May 2020_VOL 372_Part 4th

608 EXCISE LAW TIMES [ Vol. 372

ty under Section 112(b) of the Customs Act. Penalty under Section 114AA of the
Customs Act, 1962 was also proposed to be imposed on Shri Ganesh Haridas
Kadam and Shri Santosh Kumar Poddar. In reply to the said show cause notice,
it was submitted that Shri Santosh Kumar Poddar, on being informed by Shri
Ganesh Haridas Kadam, that his employee Shri Amol Deshmukh did not reach
his melting shop with the gold so given by them, lodged a complaint before local
Police Station. On the next day having come to know that Shri Amol Deshmukh
is produced before the Judicial Magistrate, they rushed to Customs Department
and lodged the claim of ownership for the seized gold along with their Books of
Account. The other two appellants replied on the same lines.
5. Learned Commissioner, adjudicating the case found it quite surpris-
ing and unacceptable that M/s. Anjani Gold Private Limited had handed over
gold more than Rs. 60 lakh to Shri Ganesh Haridas Kadam without any written
agreement and without verifying the antecedents/papers/authorization or en-
listment of the melting shop on the basis of verbal reference of a person of
Rourkella. He also observed that the Company M/s. Anjani Gold Private Lim-
ited purchased gold weighing 198015.52 grams on 26-3-2015 from the Customs
authorities through the State Bank of India vide Tax Invoice No. OBK/PCD/13-
14/26, dated 26-3-2015. On 29-6-2015, but two gold biscuits under seizure had
marking not matching with the subject auction. Also the date of auction was
26-3-2015, but the seizure was effected on 29-6-2015 after a lapse of more than
three months and Learned Commissioner found no rhyme or reason in withhold-
ing the said purchased gold for such unusual long time considering their quan-
tum and frequency of trade of Gold Bullion and accordingly he found that the
burden of proof on the part of the appellants under Section 123 of the Customs
Act had not been discharged. Further, he found that Shri Santosh Kumar Poddar
was also involved in another case of smuggling bearing No.
16/IMP/CL/GOLD/CUS/DPU/BCD/13-14, dated 19-11-2013 and as such he is
a habitual offender. Accordingly, order for absolute confiscation of the entire
seized gold under Sections 111(b) & 111(d) of the Customs Act was passed and
penalty of Rs. 5,00,000/- (Rupees Five Lakhs) on Shri Amol Deshmukh,
Rs. 6,00,000/- (Rupees Six Lakhs) on Shri Ganesh Haridas Kadam and
Rs. 6,00,000/- (Rupees Six Lakhs) on Shri Santosh Kumar Poddar under Section
112(b) of the Customs Act, 1962 was imposed. Also penalty of Rs. 50,00,000/-
(Rupees Fifty Lakhs) on Shri Santosh Kumar Poddar, under Section 114AA of the
Customs Act, 1962 was imposed. All the three persons are in appeal against the
impugned Order-in-Original.
6. Learned Advocate appearing on behalf of the appellants submitted
that the impugned order is passed on assumption and presumption. It is a fact on
record that M/s. Anjani Gold Private Limited is engaged in Bullion Trade. They
had purchased gold in Customs auction through State Bank of India which is
duly recorded in their Books of Account and the seized gold is also accounted for
in their Books of Account. That two of the gold pieces had some marking inscrip-
tion not mentioned in the Tax Invoice issued by the State Bank of India is not
correct factually inasmuch as the subject invoice did not have any piece-wise
identification mark mentioned therein. He further submitted that melting/re-
melting of gold to obtain desired purity is very common in gold business. There
is no rule prescribed for movement of gold for such purpose nor there is any re-
striction for melting/refining of gold under the Customs Act or Rules made
thereunder. He also submitted that the Revenue has proceeded against the Direc-
EXCISE LAW TIMES  15th May 2020  218