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TMI Blog2023 (7) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheet, Fixed Assets Schedule, Income Tax Returns etc. Out of the 12 pieces of gold found in the vault, only one piece was with marking of MELTER ASSAYER . There was no marking in the balance 11 pieces of gold bar. Therefore, on the basis of this one piece itself, the Department cannot come to a conclusion that all the 12 pieces are of foreign origin. When the Appellant has provided the details of his mother s address and has stated that he has given 330 grams of gold, it is seen that the Department has not carried out any verification to ascertain the veracity of this claim. The Department has also not made any efforts to verify the claims that he has undertaken melting works for various persons by making any enquiry from them. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of these 12 cut pieces of gold was ascertained at 499.800 grams. The officials seized the 12 cut pieces of gold bar and Indian Currency of Rs.11,36,300/-. Thereafter, the Show Cause Notice was issued for confiscating the gold and currency found in the premises of the Appellant. After due process, the Adjudicating Authority ordered for absolute confiscation of 499.800 grams of gold bar valued at Rs.15,44,382/- and also absolute confiscation of Indian Currency of Rs.11,36,300/-. He imposed penalty of Rs. 2 Lakhs on the Appellant. Being aggrieved, the Appellant filed an Appeal before the Commissioner (Appeals) who has upheld the Order passed by the lower Authority and rejected the Appeal filed by the Appellant. Being aggrieved, the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of various persons from whom he has received the gold for melting. He has also given the details of his mother s address and has stated that he was given 350 grams ornaments by her. He has stated that Rs.11,36,300/- cash seized is his own property which is the earnings made by him during the last 15 years. The Appellant has provided the copy of the Trade Licence of his Melting House, Profit Loss Account, Balance Sheet, Fixed Assets Schedule, Income Tax Returns filed during the period 2013-14, to 2017-18. Considering all these aspects, the Learned Advocate submits that the Department has proceeded purely on assumptions and presumptions and there is no corroborative evidence brought in by the Department to support their allegation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation of gold, cash and penalty imposed on the Appellant. 5. Heard both sides and considered the submissions. 6. It is an admitted fact that the verification was conducted in the premises of the Appellant which is located in Kolkata which is not any border town of India. The Appellant has provided the details of Trade Licence of his Melting House, Profit Loss Account, Balance Sheet, Fixed Assets Schedule, Income Tax Returns etc. Out of the 12 pieces of gold found in the vault, only one piece was with marking of MELTER ASSAYER . There was no marking in the balance 11 pieces of gold bar. Therefore, on the basis of this one piece itself, the Department cannot come to a conclusion that all the 12 pieces are of foreign origin. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods, the burden of proving that they are not smuggled goods shall be on the appellant. Admittedly, if revenue is having a reasonable belief that they are smuggled goods, then the burden of proof that the goods are not imported lies on the appellant. But firstly, there should be a reasonable belief that the gold in question is smuggled one is to be established by the revenue to invoke Sec. 123 of the Customs Act. In the impugned order as well as adjudication order, nowhere it has been established that there was a reasonable belief that the goods in question are smuggled goods which is the bone contention to invoke Section 123 of the Customs Act, 1962. Further, the appellant has also brought on record that the marking on gold in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a person in India cannot be considered to be of smuggled nature and that the possessor of such gold has to discharge the onus under Section 123 of the Customs Act, 1962, However, it may be a requirement from a person in a Customs area who imported gold as baggage. In the instant case the foreign marked gold was not seized from a customs area or a person coming from an international border. Accordingly, it is held that in the present appeals, Revenue has failed to establish that seized gold was of smuggled nature. 5. Appellant Shri Rajendra Kumar Damani has brought on record two bills suggesting the purchase of the seized gold biscuits from M/s. Anand Sales Pvt. Ltd. On investigation by the Customs officer Shri Nand Kishore Modi o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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