Commissioner Of Customs (Preventive) vs Vijay Dasharath Patel

3. Smt. Rasilaben Rathod ARGOR HERAEUS 95 Under her attire tied with a waist belt

8. Nathubhai @ Nitinbhai B. Patel CREDIT SUISSE 55 Hidden in sole of the shoes Out of the said 551 of gold biscuits, 200 belonged to Shri Vijaybhai Dashrathlal Patel, Proprietor of M/s. Paras Bullion, whereas 351 belonged to Shri Shailesh Ratilal Patel, Proprietor of M/s. S.K. Jewellers. Both of them were arrested. They made their statements under Section 108 of the Customs Act, 1962 ('the Act', for short). Shri Vijaybhai Dashrathlal Patel, respondent herein, allegedly, in his statement disclosed that he had purchased the said 200 gold biscuits from one Ridhi Siddhi Bullion Ltd. who had produced a delivery challan of ABN AMRO Bank issued in its favour. Other than the said delivery challan, allegedly, he could not produce any other document. The purported letter of ABN AMRO Bank dated 12.11.1999 addressed the Assistant Commissioner of Customs, Ahmedabad is in the following terms :

According to him, he had sold 200 gold biscuits to one Devangbhai Patel on 23.10.1999, but had no document to establish the same or that he had not received any payment therefor. It was the further statement of the said respondent that he had sold 300 gold biscuits to Shailesh Patel, but again therefor no commercial invoice or delivery challan had been issued. A further statement was made to the effect that out of the said 300 gold biscuits, 130 having UBS marking were purchased from one K.L. Chokshi and remaining 170 were purchased from different parties, but again therefor no payment was made either in cash or cheque. Statement of Shailesh Patel was recorded on 24.10.1999 under Section 108 of the Act when he disclosed that he had purchased 300 gold bars from Paras Bullion but no bill had been issued therefor nor any payment has been made by him. On the said date, statement of Naresh Chokshi was also recorded, wherein, allegedly, he did not make any statement to the effect that he had sold any gold bar of UBS mark to Paras Bullion. The second statement of Shailesh Patel was recorded on 29.10.1999, wherein he reiterated his earlier statement, stating :

We need not refer to the other statements made by other persons recorded by the Customs Officers on that date, being not relevant for the purpose of this case. We may, however, notice that proceedees retracted from their statements on 11.11.1999, alleging that he had the requisite documents to support their contentions that gold seized were not smuggled ones.

However, according to Vijay Dasharath Patel, 300 gold bars were sold to M/s. S.K Jewellers, out of which 201 were purchased from M/s. K.L. Chokshi and the rest were purchased from other jewellers. According to him, he did not maintain any stock register. He further stated that he had sold 200 gold bars to Patel Bullion on 23.10.1999, although he had not received any payment from the said vendee.

A show cause notice was issued upon the respondents on 1.3.2000 asking them to show cause as to why the seized gold bars should not be confiscated and penalty should not be imposed. Cause having been shown and the matter having been heard, the Commissioner, by his order dated 28.2.2001, inter alia, held :

? On 24.10.1999, Vijay Dasharath Patel has stated that he had purchased 200 pieces of foreign mark gold bars of "CREDIT SUISSEE" mark from M/s Riddi Siddi Bullion on 23.10.1999. However, from the statement of Shri Dinesh authorised signatory of M/s Riddi Siddi Bullion did not mention whether the gold biscuits delivered to Mr. Vijay Dasharath Patel were of CREDIT SUISSEE mark. It was also observed that the alleged Bill No.294/GL/99/2000 dated 23.10.1999 also does not show the markings of the brand name of the gold biscuits.

? M/s Riddi Siddi Bullion had relied upon Bill No.2753 dated 22.10.1999 issued by Anjali Exim Pvt. Ltd. in favour of M/s. Riddi Siddi Bullion for 200 gold brars of UBS mark. However, it is found that there are no gold biscuits of foreign origin of UBS brand among the 500 gold biscuits and, therefore, the said bill has no relevance with the gold biscuits under seizure.

? Although it was admitted by Vijay Dasharath Patel and Shailesh Patel that no bills, vouchers, delivery challans were issued in respect of the sale of 300 gold bars. Entries have been made and Bill No.11930 and 11931 have been subsequently prepared on 24.10.1999 to legalise the sale. ? 72 entries of purchase and sale have been made in the stock account of M/s Paras Bullion after the alleged transactions of bills No.11930 and 11931. It is humanly impossible that all these entries can be made within one hour and that the entries in which stock register of M/s Paras Bullion were made with a view to create the impression of legal purchase and sale of 500 foreign mark gold biscuits.

The High Court set aside the order dated 7.1.2004 passed by the Tribunal in the applications for rectification of mistakes and on the same day allowed the said Special Civil Application filed by the respondents, in terms whereof the order of the Tribunal was set aside and the matter was directed to be considered afresh.

We are not oblivious of the fact that the High Court's jurisdiction in this behalf is limited. What would be substantial question of law, however, would vary from case to case.

We, therefore, do not accept the contention of Mr. Vella Palli that no question of law had been raised. It was done by the Revenue in its grounds, stating :

Since the retractions are made belatedly and without any supporting evidences, these have no evidentiary value in the eyes of law."

For the reasons aforementioned, we are of the opinion that the High Court may not be entirely correct in holding that no substantial question of law arise for its consideration. Ordinarily, although, we have referred the matters back to the High Court, having regard to the fact that we have ourselves examined the findings of the Tribunal and the findings of the Commissioner, we are of the opinion that instead of remitting the matter back, interest of justice would be met if upon setting aside the judgment of the High Court and Tribunal the matters are remitted to the latter for considering them afresh. The parties shall be entitled to raise their respective contentions before the Tribunal. We intend to make it clear that our reference to the findings of the Commissioner as also the Tribunal was made only for the purpose of considering as to whether any substantial question of law arose for consideration before the High Court and for no other purpose. We may not therefore be understood to arrive at any finding in regard to any question which would arise for the consideration of the Tribunal.

For the reasons aforementioned, the appeals are allowed. The impugned judgments of the High Court as well as the order of the Tribunal are set aside. The matter is remitted to the Tribunal for consideration thereof afresh.