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2023 (7) TMI 1410 - CESTAT KOLKATASmuggling - seizure of foreign origin gold and silver - Onus to prove - gold from licit means or not - reasonable belief - confiscation - Penalty - failed to produce any licit documents in support of possession/acquisition - benefit of presumption under section 123 of Customs Act, 1962 - HELD THAT:- Relying on the decision of this Tribunal in the case of Shri Balwant Raj Soni [2023 (5) TMI 940 - CESTAT KOLKATA], we hold that the Revenue has no reasonable belief that the gold was smuggled. Therefore, they have not discharged the responsibility for forming the reasonable belief under Section 123 of the Customs Act, 1962 without which the burden of proof will not shift on the appellants from whom the gold has been seized . We further take note of the fact that there is no mark showing that the gold of foreign origin and purity of gold also remains between 99.5 % to 99.7 %, whereas the normal foreign origin gold will be of purity of 99.99 %. Thus, without coming to the belief that the gold is of the purity of 99.9 %, it cannot be alleged on presumption that it is smuggled one. Evidences proving smuggling of gold from Bangladesh - The appellants have discharged their onus u/s 123 of the Customs Act, 1962 by producing invoices in support of their claim that they are the owners of the gold in question. In view of the evidences and discussions, we hold that the appellant has discharged the onus that the source of procurement of gold. We further take note of the fact that as the Revenue has failed to prove from the facts and circumstances of the case, we have come to the conclusion that in the absence of evidence on record, it cannot be held that the gold in question is of smuggled in nature, therefore, the same can be released to the appellants. Therefore, no penalty is imposable under Section 112 (a) & 112 (b) and 114AA of the Customs Act, 1962. Accordingly, penalties imposed on the appellants are also set aside. In the result, the appeals are allowed.
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