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TMI Blog2025 (3) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... EMBER (JUDICIAL) And HON'BLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Santosh Kumar, Authorised Representative, for the Appellant Shri Jameel Ahmad, Advocate, for the Respondent ORDER PER : ANIL G. SHAKKARWAR Shri Nand Lal Soni, respondent in this appeal, was having three pieces of gold bar tied to his waist in a belt and was traveling by Sealdah-Bikaner Duronto Express. He was intercepted by the officers of Revenue and was taken to Varanasi office for personal search. On personal search, the above stated three pieces of gold were noticed which were seized on 31.03.2022. The said gold was presented to government approved valuer. The respondent was arrested. In his bail application the respondent had submitted two gold rental agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, respondent preferred appeal before Commissioner (Appeals). Learned Commissioner (Appeals) has recorded following findings in para 5.9 and 5.10 of his impugned order which are reproduced below:- "5.9 Now, I come to discuss the documents produced by the appellant with respect to the gold, recovered from his possession. I find that M/s Divine Nursing Home Pvt. Ltd. had purchased 05 Kgs of gold of 99.5% purity from M/s Magna Projects Pvt. Ltd. vide invoices dated 31.10.2017 & dated 03.11.2017. The said entity i.e. M/s Divine Nursing Home Pvt. Ltd. had entered into an agreement dated 26.03.2022 with Shri Radhe Shyam Soni vide which 3 Kgs of Gold bars of 99.5% purity was given to Shri Radhe Shyam Soni for jewellery making. Subsequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold. The chemical testing of the impugned goods was also not done, the reason best known to the department. Testing by the authorized laboratory was quite essential, given the circumstances of the case to counter the appellant's claim of carrying the gold of 99.5% purity and more importantly, to establish the smuggled nature of the impugned gold. 5.10 Therefore, I am of the considered view that the appellant has fully discharged the burden of proof as required under Section 123 of the Customs Act, 1962 by producing the above mentioned documents for the licit procurement of the impugned gold, recovered from his possession, at the time seizure. On the contrary, the department has failed to produce any cogent evidence to establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were no markings on the three pieces of gold bars which is at variance to the statement dated 31.03.2022 of the respondent which was recorded under Section 108 of Customs Act, 1962. He has further submitted that learned Commissioner (Appeals) has stated that the gold was not subjected to examination by Chemical Examiner whereas the fact is that government approved valuer has certified the purity of the said gold to be 99.5%. He has further submitted that on 09.10.2021 one agreement was entered into between M/s. Divine Nursing Home Pvt. Ltd. and M/s. Jai Krishna Jewellers Co. Pvt. Ltd., Kolkata and, therefore, the agreement between M/s. Divine Nursing Home Pvt. Ltd. and Shri Radhe Shyam Soni on 26.03.2022 does not appear to be true. 3. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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