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TMI Blog2024 (7) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... le belief that the gold in question is of foreign origin. In the case of Nand Kishor Sumani [ 2015 (10) TMI 2329 - CESTAT KOLKATA] , when the purity of gold was less than 99.99% and no foreign marking on the gold seized and it was a town seizure, in that circumstances, this Tribunal has held ' There could be non-observance of provisions of some other enactments like income-tax or sales tax laws but the same cannot be grounds for confiscation of goods under Section 111 of the Customs Act, 1962 when there is no iota of evidence that seized gold bars are of foreign origin or smuggled into India. Suspicion/presumption howsoever strong cannot take the place of an evidence.' The gold in question cannot be confiscated. Consequently, the confiscation of gold in this case is set aside and no penalty is imposable on the appellant - the impugned order qua confiscation of gold and imposing the penalty on the appellant is set aside - appeal allowed. - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) Shri N. K. Chowdhury , Advocate for the Appellant Shri Tariq Sulaiman , Authorized Representative for the Respondent ORDER Per Ashok Jindal : The appellant is in appeal against the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is of foreign origin. Therefore, the impugned order is to be set aside and the seized gold be released to the appellant. 3.1 It is his further submission that the gold in question was obtained by the appellant from his mother, who has also filed Wealth Tax Return and produced the Wealth Assessment in the year 2015-16. In support of this claim that the gold in question was obtained by him from his mother for sale, which is obtained from the jewellary melted and no contrary evidence has been produced by the Revenue to show that the gold in question is of foreign origin. In that circumstances, the absolute confiscation of gold is not sustainable. To support his contention, he relies on the following decisions : (i) Ajit Bhosle : 2020 (374) ELT 814 (ii) Suresh Chand Garg : 2023 (386) ELT 613 (Tri.-Del.) (iii) Madhukar Sonaba Bhagat : 2019 (368) ELT 990 (Tri-Kol.) (iv) Ratan Kumar Saha : 2021 (375) ELT 435 (Tri-Kol.) (v) Nand Kishor Sumani : 2016 (333) ELT 448 (Tri.-Kol.), which has been affirmed by the Hon ble Calcutta High Court as reported in 2016 (337) ELT 10 (Cal.). 4. On the other hand, the ld.A.R. for the Revenue supported the impugned order. 5. Heard both the parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of chemical examine will prevail over the oral statements made. However, it is observed that a chemical examiner can only give the percentage of gold in the gold bars but cannot say whether the seized goods are of foreign origin. Only the purity of the gold has been certified to be 99.92% to 99.96%. There is no rebuttal to the claim of the appellant that in case of gold of foreign origin the % purity of gold is never below 99.99%. Even the findings and calculations made by the Adjudicating authority at Paras 38 39 of the Order-in-Original dated 6-2-2014 will not help the case of the Revenue as to how seized goods will become of foreign origin when there are no foreign markings on them and there is no oral evidence also conveying the same of foreign origin. An information received in this case is only a hearsay not corroborated by any other documentary evidence. The seizure of gold bars was also not made in a Custom area or a vehicle coming from the side of Border with Bangladesh. In the light of the above factual matrix it has to be held that the seized goods cannot be considered to be of foreign origin. 6. Regarding applicability of Section 123 of the Customs Act, 1962 it is rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the appellants showing the legal purchase of the same from M/s. Chauhan Zevares Pvt. Ltd. and by referring to certain discrepancy in the said document of the seized gold biscuits. However, I find that the discrepancies referred to by the adjudicating authority are not real inasmuch as he has held that whereas the sale voucher shows the goods to be T.T. Bars , the seized gold is biscuit. He has thus observed that such descriptive variation between the biscuits and the bars raises a reasonable doubt regarding the genuineness of the transaction. The appellants have contended that biscuits and the bars are synonymous terms used by the persons dealing in gold and are interchangeable T.T. Bars represent ten tola bars which are also referred to as biscuits. The Commissioner in his impugned Order has nowhere observed as to what is the difference between a biscuit and a bar. Similarly, as regards weight, I find that there is a variation of about 2 gms. in the weight of all the sixteen pieces of gold. The standard 10 tola bars weigh 116.640 gms., and as such, the total weight of 16 pieces of biscuits would come to 1866.240 gms., which is reflected in the sale voucher of M/s. Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brand names of the same in the sale/purchase vouchers, the sale documents produced by the appellants cannot be dismissed on the said ground. In the instant case also, we find that the entire chain of sequence starting from importation of gold biscuits of M/s. Kan Karan Impex, its sale to M/s. Chauhan Zevares and further sale to Shri Kapildeo Prasad, is established. As such, taking the said factor into accounts, I am of the view that the onus cast upon the appellants under the provisions of Section 123 stands fully discharged. The confiscation of the gold biscuits is not called for. Accordingly, I set aside the same. 15. Inasmuch as the confiscation of the gold biscuits has been set aside, the confiscation of the truck is not called for. For the similar reasons, there is no warrant for imposition of penalties upon the various persons. The same is, accordingly, set aside. 7.1 In the light of the above relied upon case law in the case of foreign marked gold also it was held by this Bench that appellant has discharged the onus when the bills covering the foreign marked gold bars are furnished. In the present case the seized gold bars do not bear foreign markings, do not have unifor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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