Back
2023 Supreme(Online)(CESTAT) 310
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH – COURT NO. 3
CUSTOMS APPEAL NO. 50536 OF 2022
(Arising out of Order-in-Appeal No. CCA(A) Cus/D-II/Prev./NCH/1471/2021-22
dated 10.12.2021 passed by the Commissioner of Customs (Appeals), New
Custom House, Near IGI Airport, New Delhi 110037)
Kashi Kumar Aggarwal
Appellant
H.No. 91, Gali Hanuman, Pacca Danga,
Jammu 180001
VERSUS
Commissioner of Customs (Preventive) Respondent
New Custom House, Near IGI Airport
New Delhi
APPEARANCE:
Shri Aditya Giri, Advocate for the Appellant
Ms. Jaya Kumari, Authorized Representative for the Department
CORAM :
HON’BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)
HON’BLE MS. BINU TAMTA, MEMBER(JUDICIAL)
DATE OF HEARING: 15.02.2023
DATE OF DECISION: 23.03.2023
FINAL ORDER NO. 50387/2023
P.V. Subba Rao
Shri Kashi Kumar Agarwal1 filed this appeal to assail order-in-
appeal2 dated 10.12.2021 passed by the Commissioner of Customs
(Appeals), New Custom House, New Delhi upholding the order-in-
1 Appellant
2 Impugned order
2
C/50536/2022
original3 dated 20.3.2019 passed by the Additional Commissioner
of Customs deciding on a Show Cause 4 Notice dated 21.2.2018
issued
by
the
Additional Director, Directorate of
Revenue
Intelligence5, New Delhi insofar as it relates to the appellant. It
needs to be pointed out that against the same order-in-original, in
addition to the appellant, two other persons- Shri Deepak Handa
and Shri Ravi Handa- had filed appeals before the Commissioner
(Appeals) who decided the three appeals separately. Against the
orders of the Commissioner (Appeals), Shri Deepak Handa filed
appeal C/52922 of 2016 and Shri Ravi Handa filed C/52923 of
2016. Both these appeals have been disposed of by Final Order No.
51520-51521/2021 dated 25.5.2021. The order, in a nutshell,
upheld the confiscation of the primary gold with foreign markings
but set aside the confiscation of the gold ornaments and the cash.
Consequently, the penalties were also reduced.
2.
After the above order, the Commissioner (Appeals) passed
the impugned order in respect of the appellant which also involves
confiscation of the primary gold, confiscation of the jewellery,
confiscation of money and imposition of penalty. In this appeal, the
appellant is assailing the following:
a) Confiscation of 2776.94 grams of gold valued at Rs. 72,21,040/-
seized from the appellant by a Panchnama dated 24.8.2017. This
gold includes (i) one kg gold bar of 995 purity with marking „Argos
Heraeuss‟; (ii) one kg gold bar of 995 purity with marking “ Rand
refinery”; (iii) one cut piece of gold of 995 purity weighing 195.23
3 OIO
4 SCN
5 DRI
3
C/50536/2022
grams; (iv) a plastic box with jewellery weighing 246.37 grams;
and (v) a plastic pouch with jewellery weighing 335.34 grams;
b) Confiscation of Indian currency of Rs. 8,86,500/- seized from the
appellant by a Panchnama dated 24.8.2017; and
c) Penalty of Rs. 25,00,000/- imposed on the appellant under section
112(b) (i).
3.
The factual matrix of the case is as follows. Acting on specific
information, officers of DRI intercepted two persons sitting on seats
C7 and C9 of Delhi Udhampur Express train (No. 22401) on
23.8.2017 while the train was still at Delhi Rohilla Railway Station.
They identified themselves as Shri Deepak Handa6, (the appellant
in appeal No. 52922) S/o Shri Vijay Kumar and Shri Surinder
Singh, S/o Shri Bansi Singh. When asked, they denied that they
were carrying any gold in any form. Officers searched them and
their baggage under Section 102 of the Customs Act, 19627 and
recovered 9 gold bars of foreign origin weighing 1,000 grams each
and gold jewellery weighing 5.429 kg and 120 gold coins suspected
to be of foreign origin totally weighing 0.96 kg. Shri Surinder
Singh, in his statement dated 24.8.2017, said that he worked as a
casual labourer in the shop of Deepak on a salary of Rs. 7,500 per
month and the statement of Deepak on 24.8.2017 corroborated
that Shri Surinder Singh was only his employee.
4.
While the jewellery was recovered from their bags, four of the
foreign marked gold bars were recovered from the shoes of Deepak
in which they were concealed. The remaining five gold bars and the
6 Deepak
7 Customs Act
4
C/50536/2022
gold coins were wrapped in brown colour tape and concealed in the
specially designed secret pockets in the back pack.
5.
The total gold weighing 15.389 kg estimated to be worth
about Rs. 4.6 crores was seized under the Customs Act as Deepak
did not have any bills for the gold nor any documents to show that
the foreign marked gold was legally imported into India.
6.
During investigation, Deepak said that the gold bars were
purchased from one, Shri Kashi Kumar Aggarwal, the
appellant. Investigations were conducted and the SCN was issued
and adjudication order was passed which was partly set aside by
Final Order dated 25.5.2021 insofar as Shri Deepak Handa and Shri
Ravi Handa were concerned.
7.
In the follow up operations, gold bars with foreign
markings weighing 2000 grams, one cut piece of gold of 995
purity weighing 195 grams, gold ornaments weighing
246.37 grams in a plastic box and ornaments weighing
334.34 grams in a plastic pouch and cash of Rs. 8,86,500
were seized from the shop of the appellant in Delhi which
are the subject matter of this appeal and the impugned
8.
Investigations were completed and the SCN was issued and it
was adjudicated by the Additional Commissioner of Customs who
passed the OIO as follows:
i.
I confiscate the seized gold weighing 15.3890 kg
(recovered from Shri Deepak Handa) valued at Rs.
4,60,02,337, seized vide panchnama dated 23/24-8-
5
2017 under section 111(d), 111 (i) and 111(p) read with
section 120 of the Customs Act, 1962.
ii.
I confiscate the seized gold weighing 2776.94
grams
(recovered
from
Shri
Kashi
Kumar
Aggarwal) valued at Rs. 72,21,040/- seized vide
panchnama dated 24.8.2017 under section 111(d),
111(i) and 111(p) read with section 120 of the
Customs Act, 1962
iii.
I confiscate the seized gold weighing 1,118.24 grams
(recovered from M/s. Baibhav Ornaments) valued at Rs.
46,83,820/- seized vide panchnama dated 24.8.2017
under sections 11(d), 111(i) and 111(p) read with
section 120 of the Customs Act, 1962.
iv.
I confiscate Indian currency amounting to Rs.
8,86,500 seized vide panchnama dated 24.8.2017
under section 121 of the Customs Act, 1962.
v.
I confiscate Indian currency amounting to Rs. 9,64,600
seized from the business premises of M/s. Baibhav
Ornaments and I confiscate Indian currency amounting
to R.s 3,64,500/- from the premises of M/s. Radhika
Jewellers
(Ground
Floor)
vide
panchnama
dated
24.8.2017 under section 121 of the Customs Act, 1962.
vi.
I impose a penalty of Rs. 50,00,000 under section 112
(b) (i) of the Customs Act, 192 on Shri Deepak Handa
for his acts of omission and commission stated above.
vii.
I impose a penalty of Rs. 25,00,000 under section
112 (b) (i) of the Customs Act, 192 on Shri Kashi
6
Kumar Aggarwal for his acts of omission and
commission stated above.
viii.
I impose a penalty of Rs. 10,00,000 under section 112
(b) (i) of the Customs Act, 1962 on Shri Ravi Handa for
his acts of omission and commission stated above.
ix.
I do not impose any penalty under section 114AA of the
Customs Act, 1962 on Shri Deepak Handa, Shri Kashi
Kumar Aggarwal and Shri Ravi Handa, for the reasons
mentioned above.
9.
In the impugned order, the Commissioner (Appeals) upheld
the OIO insofar as the appellant is concerned. In this appeal, the
appellant is assailing the impugned order upholding the decision of
the Additional Commissioner insofar as it relates to the confiscation
of the gold, gold ornaments and cash from the appellant and the
imposition of penalty on the appellant.
10.
Learned Counsel for the appellant made the following
submissions:
a) The adjudicating authority did not consider the appellant‟s
request for summoning as witnesses Deepak Handa and
Ravi Handa for cross examination on whose statements
the whole case is based.
b) The appellant and Deeepak Handa had retracted their
statements at the first available opportunity on 28.8.2017
and 24.9.2017 which was recorded by the learned Chief
Metropolitan Magistrate when the appellant was produced
after arrest.
7
c) The
gold
ornaments
weighing
246.37
grams
(10
necklaces and 4 sets of earrings) belong to M/s. Jeet
Jewellers of Mumbai which were kept with the appellant
to take care of them. They do not belong to the appellant.
d) Ornaments weighing 335.34 grams belong to M/s.
Raghav Jewellers, Saharanpur, UP which they purchased
from M/s. Heera Jewellers of Chadni Chowk which was
also kept with the appellant.
e) The two gold bars weighing 1000 grams each having
purity of 995 and foreign markings were purchased by
M/s. Easy Trading from M/s. Pinki Chains. The appellant
produced invoice dated 19.8.2017 and a copy of ledger
account, copy of Form DVAT-56, copy of GST R2A of M/s.
Pinki Chains along with other supporting documents and
evidences.
f)
Revenue has not adduced any evidence to show that the
seized gold was smuggled.
g) The bills produced show that the gold was legally
purchased from the local market. The appellant was only
a broker and was not the importer or owner of the seized
gold.
h) Section 111 (d) of the Customs Act does not apply to
town seizures of goods. It applies to
