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TMI Blog2024 (10) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... t which appellants have been claiming is that the gold in question was procured from legitimate source as also supply of the gold was being made as a legitimate business transaction. This aspect has not been dealt with at all by the Adjudicating Authority and very cryptic remark has been made to dismiss the defence. The claim that it s a remelted gold and that duty paid invoice has been given to Courier company has also not been examined. When in a statement recorded under Section 108 of Customs Act 1962, someone gives evidences, it has to be carefully evaluated and it s authenticity or otherwise has to be examined. The Adjudicating Authority should have examined all the documents and submissions and then taking up the issue of authenticity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) against the Orderin- Original dated 24.06.2022. 2. The case, in brief, is that the Officers of Customs Department intercepted certain consignment at Domestic Terminal Air Cargo Complex, Hyderabad on 03.10.2020 under reasonable belief that the said consignments were carrying foreign marked gold and therefore the same were liable for confiscation. On further examination of the said consignments it was observed that the Courier Company was carrying consignments from different persons to different destinations and therefore, the Department opened the said consignment and found various smaller packets belonging to different persons. On further verification of the gold, jewellery etc., with the help of assayer they found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I find that in all the said cases the material facts are different from the facts of the subject case and hence I do not propose to deliberate on them in detail. 34. Thus, I hold that the impugned gold is of foreign origin and the jewellers have failed to discharge the burden of proof cast on them in terms of Section 123 of the Customs Act, 1962. 4. Learned CA for the appellant has mainly contested on the ground that firstly, the test report of the assayer relied upon by the Department itself gives a disclaimer that they are not in a position to say whether the gold is of foreign origin or otherwise even though the Department has alleged the said gold is of foreign origin. Therefore, there is no sufficient evidence for the Department to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation. He also submits that the submissions of the Learned CA about bringing to the notice of Department, the documents like invoices covering the consignment being sent to Mumbai, as also the procurement of gold jewellery etc., were never produced or shown to the Department as alleged by the appellants and therefore the appellants have not been able to discharge the burden of proof and therefore the gold were rightly liable for confiscation and the appellant is also liable for penalty. 6. Heard both the sides and perused the records. 7. I find that the entire case is based on interception of certain consignments in the Air Cargo Complex, Hyderabad which were being carried by the Courier companies. In the case of the appellant, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any has also not been examined. When in a statement recorded under Section 108 of Customs Act 1962, someone gives evidences, it has to be carefully evaluated and it s authenticity or otherwise has to be examined. If the appellant has made wrong assertions about the source of purchase etc., and therefore making false statements, they are liable for penal action under relevant provisions of IPC. Therefore, it appears that order has passed in a bland and routine manner and without following the principles of natural justice. The Adjudicating Authority should have examined all the documents and submissions and then taking up the issue of authenticity with regard to the claim that the gold were procured from legitimate source following prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... origin. A cryptic common and general order passed for all the persons, without appreciating factual matrix and evidence adduced by each of the appellants, would not be correct and may tantamount to nonapplication of mind. 11. When a serious charge of smuggling is being levelled, the evidence has to be carefully and duly evaluated, notwithstanding the provisions under Section 123 of Customs Act 1962, and the concerned person should be accorded all reasonable opportunities to defend his case and thereafter by way of speaking order, the matter should be decided. In the present case, the impugned order is clearly not a speaking order nor it appears to have followed the principles of nature justice in true spirit of the doctrine. However, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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