Commissioner of CUS., EX. & S.T., Siliguri vs Nand Kishore Somani

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 had been quashed.

Challenging the aforesaid order passed by the learned Tribunal, the present appeal was filed.

Mr. Bhardwaj, learned advocate appearing for the revenue, drew our attention to a certificate dated September 19, 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 95.50%. 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.

We 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.

We need not add to the reasons why the certificate is of no consequence. No other submission was advanced. We are of the opinion that this appeal is altogether unmeritorious and is dismissed with costs assessed at 100 GMs.