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TMI Blog2024 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the Revenue has not brought on record any evidence to show that the subject gold bars were actually smuggled from Bangladesh into India. The Revenue has also failed to procure and bring the testimony of Sri Bablu on record, who as per Revenue, specifically knew the fact of smuggling and erasing of foreign markings. The mere fact that the summon issued to Sri Bablu remained undelivered, never precluded the Revenue from taking custody of Sri Bablu and procure his testimony, in the manner known to law. The Appellant clearly proved ownership of same quantity of gold against consideration on the strength of valid invoices. By bringing the two invoices on record, the Appellant discharged his initial onus and thereafter it was for the Revenue to establish that the two invoices does not relate to the subject gold bars. However, this onus has not been discharged by the Revenue in the present case as no enquiry has been made regarding consideration paid by the Appellant and its source etc. to prove that the two invoices are not related to the subject gold bars. It is found that neither the foreign origin of the gold nor the nature of the same being smuggled is conclusively established o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and the gold bars in question are of foreign origin with markings erased. The Appellant was then arrested and produced before the Ld. CJM, who remanded the Appellant to judicial custody. During the course of further investigation, summons were issued to M/s Kashi Jewellers, Sri Arun Kumar and one Sri Santosh Kumar. One of the partners of M/s Kashi Jewellers stated that they purchased goods from Government Agencies and he denied any connection with the Appellant. Brother of the Appellant also appeared and stated that business partition between them took place in the year, 2016 and thereafter he has no business connection with the Appellant. Sri Santosh Kumar also tendered his statement to the effect that he has no connection with the Appellant and he has business relation only with the Appellant s elder brother Sri Arun Kumar. 3. At this stage, the Revenue again recorded statement of the Appellant on 28.08.2019 in District Jail, Varanasi after taking permission of the Court of Special CJM (Economic Offences), Varanasi. The statement was to the effect that the Appellant has no concern with the firm of his brother M/s G.S India, neither his brother Sri Arun Kumar nor Sri Santosh Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.25,00,000/- on the Appellant under Section 112(b) of the Act. 6. Aggrieved with the adjudication order dated 09.06.2021, the Appellant preferred appeal before the Ld. Commissioner (Appeals) which was numbered as Appeal No.73-CUS/2021, which has been dismissed by the impugned order, wherein the findings recorded in the adjudication order have been upheld. 7. Ld. Counsel for the Appellant has contended that the Appellant has been falsely implicated in the matter, the subject gold bars were purchased by the Appellant from within the country as is evident from the two purchase invoices, genuineness of which has not been doubted by the two lower Authorities, the statements of the Appellant were recorded under duress and coercion hence cannot be solely relied to conclude that the subject gold bars have been smuggled from outside India, in absence of any foreign marking and purity on the subject gold bars and the recovery of subject gold bars at Pt. Deen Dayal Upadhyay Junction (Mughalsarai) Railway Station is a town seizure. Onus of proof that the subject gold was smuggled is on the Department not on the Appellant. The Department is not able to find the supplier of subject gold bars, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord any evidence to show that the subject gold bars were actually smuggled from Bangladesh into India. The Revenue has also failed to procure and bring the testimony of Sri Bablu on record, who as per Revenue, specifically knew the fact of smuggling and erasing of foreign markings. The mere fact that the summon issued to Sri Bablu remained undelivered, never precluded the Revenue from taking custody of Sri Bablu and procure his testimony, in the manner known to law. Here it is also important to note that having found nothing incriminating against the brother of the Appellant, Sri Santosh Kumar and M/s Kashi Jewellers, the Revenue was also required to investigate the matter further in respect of Sri Pramod, who allegedly was the recipient of the subject gold bars. However, the Revenue also failed to procure the testimony of Sri Pramod on record and therefore the Revenue clearly failed to fill up the loose ends in the story of smuggling and delivery of goods at Delhi. 12. On the contrary, the Revenue has also not disputed the genuineness of the two invoices produced by the Appellant and the transactions reflecting in the bank accounts, to substantiate legal and valid ownership of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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