9911796707
TMI Blog2019 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the Revenue has failed to prove that the Gold in question is of third country origin and have been imported/smuggled through Nepal. Without evidence, the benefit of presumption under Section 123 of the Customs Act, 1962 is not available to the Revenue - The Gold in question cannot be held as restricted goods and they can be released on payment of redemption fine and penalty as the goods are smuggled in nature. The redemption fine of ₹ 5 lakhs is imposed on the Gold in question which can be redeemed on payment of the said redemption fine - Considering the fact, that appellants are involved in the activity of smuggling of Gold, therefore, penalty of ₹ 1 lakh each is imposed on all the appellants - appeal allowed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the Gold recovered from the possession of appellants namely Shir Umesh Kumar and Shri Ajay Kumar was absolutely confiscated and penalties to the tune ₹ 10 lakhs each on Shri Umesh Kumar and Shri Ajay Kumar and a penalty of ₹ 15 lakhs has been imposed on Shri Sanjeeb Kumar. Against the said order, the appellants are before us. 3. The learned counsel for the appellants submits that in terms of Section 123 of Customs Act, 1962 the onus is on the appellant to prove that the Gold in question is not smuggled one, although appellants have failed to prove that Gold is not smuggled one but the allegation of the Revenue that the Gold is restricted item being third country origin has not been proved by the Revenue and no evidence ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Gold. Therefore, the Revenue has failed to prove that the Gold in question is of third country origin and have been imported/smuggled through Nepal. In that circumstances, the Gold in question cannot be held as restricted goods and they can be released on payment of redemption fine and penalty as the goods are smuggled in nature. We also gone through the case law relied upon by the learned Counsel for the appellants in the case of Prithviraj Pokhraj Jain (supra) wherein in Para 19 which is extracted below wherein the Hon ble High Court observed as under 19. The burden was, therefore, on the prosecution to prove that the goods were smuggled. For this the prosecution relied upon the evidence of Hebbar who stated that he believed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Revenue. Therefore, we hold that the Gold in question is not restricted item but being smuggled one liable for confiscation and the same can be redeemed on payment of redemption fine. We also take note of the fact that the value of Gold is ₹ 1,26,22,800/- and margin of profit in the trade of Gold is very less, therefore, considering the value of Gold and margin of profit, we hold that the redemption fine of ₹ 5 lakhs is appropriate in the facts and circumstances of the case. Therefore, we impose redemption fine of ₹ 5 lakhs on the Gold in question which can be redeemed on payment of the said redemption fine. Considering the fact, that appellants are involved in the activity of smuggling of Gold, therefore, penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
