Certificate from a jewellery firm, whether sufficient evidence to prove the smuggling of gold bars?

PJ/CASE LAW/2016-17/3205

Case-COMMISSIONER OF CUS., EX. & S.T., SILIGURI Versus NAND KISHORE SOMANI

Citation-2016 (337) E.L.T. 10 (Cal.)

Brief Facts-The subject matter of challenge is a judgment and order dated August 21, 2015, passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, in Customs Appeal Nos. C/75327, 75516, 75642 and 75643/2014 [2016 (333)E.L.T. 448 (Tribunal)]. The aggrieved revenue has come up in appeal. Briefly stated, the facts and circumstances of the case are as follows.
On February 2, 2012, on the basis of source information, a vehicle was intercepted. Sri Nand Kishore Somani, one of the respondents, was occupying the vehicle amongst others. From his possession ten pieces of gold bars were recovered. Case was started on the basis of suspicion that the gold bars recovered from Nand Kishore were of a foreign origin. The case of Nand Kishore is that he purchased the gold bars from Sri Ajoy Kumar Saraf, carrying on business under the name and style of Saraf Jewellers at Kolkata. He also produced the cash memos. Sri Ajoy Kumar Saraf was interrogated. He affirmed that he sold the gold bars to Sri Nand Kishore Somani. He also confirmed the authenticity of the cash memos produced by Nand Kishore Somani.
The adjudicating authority in spite of the aforesaid evidence confiscated the goods recovered and imposed fine. In an appeal preferred by Somani and others, the order passed by the adjudicating authority has been quashed. Challenging the aforesaid order passed by the learned Tribunal, the present appeal was filed.

Appelants Contention-Mr. Bhardwaj, learned advocate appearing for the revenue, drew our attention to a certificate dated September 11, 2015, appearing to have been granted by a firm known as Jashomati Jewellers. The certificate relied upon by Mr. Bhardwaj is as follows :
“With reference to your above letter on the above subject I, on behalf of my firm, do hereby certify that the MAXIMUM PERCENTAGE OF PURITY OF GOLD that can be achieved by ANY GOLD REFINERY AT SILIGURI IS 99.50%. NO REFINERY IN SILIGURI CAN REFINE GOLD UPTO 99.9%.
This certificate is given on the basis of the experience gathered by us in this trade for the last four generations. At Siliguri we are running our business for the last 75 (Seventy Five) years.”
Mr. Bhardwaj contended that the gold recovered from the possession of Nand Kishore Somani, according to the clinical analysis report, contains gold content between 99.94% and 99.96%. Mr. Bhardwaj submitted that the certificate is a pointer to show that the gold bars could not have been of Indian origin.

Respondents Contention-In an appeal preferred by Somani and others, the order passed by the adjudicating authority has been quashed. Challenging the aforesaid order passed by the learned Tribunal, the present appeal was filed.

Reasoning Of Judgement-The court find no merit in this contention for the following reasons :
(a)        The certificate talks about the capacity of the refinery in Siliguri, whereas the gold bars were purchased by Nand Kishore Somani from Saraf Jewellers of Kolkata. Therefore, the certificate can have no application to the facts of this case.
(b)        A certificate has no evidentiary value.
(c)        The certificate was obtained after the adjudicating authority passed the order.
(d)        The person who issued the certificate did not appear before any authority to prove the contents of the certificate.
(e)        The contents of any certificate cannot be used against an accused without first giving him an opportunity of cross examining the person who issued the certificate.
The courtneed not add to the reasons why the certificate is of no consequence. No other submission was advanced. They are of the opinion that this appeal is altogether unmeritorious and is dismissed with costs assessed at 200 GMs.

Decision-Appeals dismissed

Comment-In the given case, the Department was trying to establish the gold bars recovered from the possession of respondent as smuggled goods. The evidence put forth by the department was in form of a certificate from a jewellery firm of Siliguri to the effect that the maximum purity of gold bars manufactured at Siliguri cannot exceed 99.50%. Since the seized gold bars had purity of 99.94% and 99.96% as per the clinical analysis report, the same could not have been manufactured in Siliguri. However, the contentions of department were denied on the grounds that the said certificate was obtained after passing of order. Further, the certificate pertained to jeweller of Siliguri while the goods were seized at Kolkata. Also, the person giving certificate was never examined. On the basis of this, it was held that the said certificate has not evidentiary value and since the entire case of department was based on this certificate, the case was decided against the department and gold bars were held as genuinely purchased.

Prepared By-Neelam Jain

Comments

PJ/CASE LAW/2016-17/3205

Post a Comment

Query