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TMI Blog2025 (4) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... DC(P)/CUS/WB/2022-23 dated 28.12.2022. 2. The facts of the case are that the Officers of the P&I Branch of Customs conducted a search at the shop premises of M/s. New Pooja Jewellers, 24 Nalini Seth Road, Ground & 1st Floor, Sonapatti, Burabazar, and recovered two pieces of gold bars collectively weighing 156.350 grams from the possession of one Shri Amit Kumar Verma. In his statement, Shri Amit Kumar Verma has inter alia stated that the said two gold pieces were given to him by the appellant when he had gone to the shop of M/s. New Pooja Jewellers for exchanging assorted gold ornaments into gold bars. 3. On the basis of the said statement recorded from Shri Amit Kumar Verma, the Officers conducted a search at the shop premises of M/s. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous people and account the same in his books of account. It is submitted that, in the present case, the two cut pieces of gold bars have been purchased from one person by name Shri Saheb Santra, who had purchased the said gold bars from ICICI Bank. It is the appellant's contention that the Department has not conducted any verification at the end of Shri Saheb Santra, from whom the appellant has legally procured the gold in question. In this regard, it is their submission that the said gold collectively weighing 100 grams has been recorded in the assets and liabilities of the appellant in the Balance Sheet for the Financial Year 2021-22. Thus, the appellant submitted that they have discharged the obligation cast upon them under Section 123 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to ascertain the purity of the said gold and no test report from CRCL has been relied upon in the instant case to show that the gold seized is of 999.9 purity. 6.3. In view of the above submissions, the appellant prayed for setting aside the impugned order and allowing their appeal. 7. The Ld. Authorized Representative of the Revenue submits that the gold bars in question are bearing foreign markings and they are of 999.9 purity and hence, as per the provisions of Section 123 of the Customs Act, 1962, it is the responsibility of the person who claims ownership of the gold to produce evidence regarding legal procurement of the gold. As the appellant was not having any valid documents for its legal procurement, the Ld. Authorized Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. The allegation of smuggling needs to be proved with cogent reasoning and corroborative evidence thereof. Subsequently, if the appellant could produce documents for its legal purchase, the same cannot be ignored to conclude that the gold is of smuggled in nature. Just because the gold bars in question bear foreign markings, it cannot be presumed that the gold bars were smuggled in nature. I find that this view is supported by the decision in the case of Commissioner of Customs (Prev.), Shillong versus Sri Sangpuia, reported in 2005 (189) E.L.T. 321 (Tri. - Kolkata) wherein it has been held as under: - "3.(d) When interdiction of personal private property of a citizen by an officer is effected the law as in that case, it has to be stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 401 (Tri. Kolkata). 9.3. In this case, I find that the appellant has claimed that he has purchased the said gold bars from one person, by name Shri Saheb Santra. However, I find that no verification was conducted by the Department at the end of Shri Saheb Santra to ascertain whether the appellant had procured the said two gold bars from him. I find that the appellant has recorded the possession of the said gold bars collectively weighing 100 grams in their balance sheet for the Financial Year 2021-22. For the sake of ready reference, the relevant page of the above balance sheet is reproduced below: - ( Emphasis supplied ) 9.4. From the above, it is seen that the appellant has recorded the legal procurement and possession of the gol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner has not supplied the Relied Upon Documents (RUDs) to the appellant and thereby deprived his right to defend himself, which is in violation of the basic principles of natural justice. I also find that the Ld. Commissioner (Appeals) has not followed the principles of natural justice and passed the impugned order without giving adequate opportunity to the appellant to put forth his defence effectively. Thus, I find that the impugned order is liable to be set aside on this ground alone. 10.2. As the confiscation of the two gold bars collectively weighing 100 grams, is not sustainable, no penalty is imposable on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962. Accordingly, I set aside the penalty imposed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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