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TMI Blog2025 (1) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments and the same casts serious doubt about legality of the same. Upon presumption that a genuine businessman could have issued proper challan for interstate movement of such high value goods. Therefore, he has held that as the person who has apprehended that the appellant has failed to discharge his burden of proof under Section 123 of the Customs Act, 1962 and ordered for absolutely confiscation of the gold in question. Admittedly, in this case, there is no marking of foreign origin on the gold nor it is the case of interception at Port or Airport or any International Border. Further, the purity of seized gold is found between 994.2 to 996.9. In that circumstances, the appellants are able to discharge his burden of proof under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold to Kolkata, Barabazar, Sonapatty to give a Goldsmith for making ornaments. 2.2 Md. Sahabuddin Laskar in his statement dated 26.04.2017 stated before Customs Authority that he is owner of 6 gold bars weighing approximately 166 gms. each out of the total recovered gold. 2.3 That the appellant Vijay Harichandra Pawar in his statement dated 26.04.2017 stated that he is the owner of shop by the name 'M/s. Shree Ganesh Gold and Silver Refinery' and his brother i.e. appellant Rahul Harichandra Pawar is the owner of 'M/s. Shree Ganesh Trading Company', which deals in sale and purchase of bullion and ornaments. 2.4 That the appellant Rahul Harichandra Pawar in his statement dated 04.05.2017 u/s 108 of the Customs Act, 1962 produced 3 Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out legality of the same. Upon presumption that a 'genuine businessman' could have issued proper challan for interstate movement of such high value goods, the Ld. Commissioner has arrived at an adverse conclusion that the appellant has failed to discharge his 'burden of proof' under Section 123 and hence, ordered for absolute confiscation of the said 12 pcs. of gold of the appellant Rahul Harichandra Pawar together with other 6 pcs. claimed by Sahabuddin Laskar. 3.2 It is submitted that such an assumption and presumption on the part of the Ld. Adjudicating Authority has no leg to stand in law. Once the appellant produced his purchase documents and document of melting of gold ornaments and the same upon investigation were found to be proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the following judicial pronouncements: (i) 2021 (375) ELT 435 (Tri-Kol.) Ratan Kumar Saha v. Commissioner of Customs, Patna (ii) 2019 (368) ELT 990 (Tri-Kol.) Madhukar Sonaba Bhagat v. Commr. of Cus. (Prev.), W.B. (iii) 2018 (362) ELT 309 (Tri-Kol.) Gopal Prasad v. Commr. of C.Ex., Cus & S.T., Patna (iv) 2020 (371) ELT 243 (Pat.) Commr. of C.Ex., Cus & S.T., Patna v. Gopal Prasad (v) 2019 (365) ELT 167 (Bom.) Union of India v. Imtiaz Iqbal Pothiawala (vi) 2015 (325) ELT 781 (Tri-Kol.) Nand Kishore Modi v. Commr. of Customs (Prev.), W.B. (vii) 2001 (135) ELT 1036 (Tri-Kol.) Samir Kumar Ray v. Commr. of Customs (Prev.), Calcutta In view of the above, it is humbly prayed that order of confiscation of 12 pcs. of gold weighing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort or any International Border. Further, the purity of seized gold is found between 994.2 to 996.9. In that circumstances, the appellants are able to discharge his burden of proof under Section 123 of the Customs Act, 1962 for acquisition of the said gold in question. Further, the Revenue has failed to discharge their onus of reasons to believe that the gold in question is smuggled in nature. 8. In that circumstances, we hold that 2 kgs. gold recovered from Md.Sajid Kamal Mondal, belongs to Rahul Harichandra Pawar, cannot be absolutely confiscated. Accordingly, the absolute confiscation of the gold is set aside. Consequently, no penalties are imposed on both the appellants. 9. In these terms, appeals are disposed off. (Pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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