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2005 (9) TMI 558 - AT - CustomsSmuggling Of Gold biscuits - Confiscation - Incomplete and poor investigation - burden of proof - HELD THAT:- In present case the Commissioner of Appeals has held that the finding of the lower authority is contrary to the record in as much as in Show Cause Notice, it had been clearly recorded that on 19-3-2001, the appellant submitted 04 pcs. of T.T. gold Bars 999 which was purchased by him from M/s. Guinea Palace Ltd. Midnapore and he also retracted his earlier statement. Thereafter, the Department made investigation to the said shop and subsequently asked statement from the shop owner. Made investigation at M/s. Jalan Co. Pvt. Ltd. wherefrom the said shop used to purchase the gold bars. But the Department failed to obtain a final statement from M/s. Jalan Co. to the effect that the seized Australian gold biscuits had not been sold by them to M/s. Guinea Palace of Midnapore. He has also observed that the shop of Midnapore used to purchase gold bars from M/s. Indian Overseas Bank, Amrotolla St. Branch, 44, Rupchand Roy St., Calcutta-7. But no enquiry at any time been conducted to verify the veracity of the statement given by the owner of M/s. Guinea Palace to know whether the seized gold bars were sold by the said bank for them or not. Due to the said incomplete and poor investigation, the Department was not in a position to question the authenticity of the bill produced by the appellant and thereby to prove that the seized gold bars were not sold either by M/s. Jalan & Co. or by M/s. Indian Overseas Bank and as such, were smuggled in nature and illegally acquired by appellant. He has, further, observed that the appellant has discharged the burden on him under Section 123 of Customs Act, 1962. The Department has failed to prove the document brought forward by appellant as false. From perusal of the above finding, it is clear that the Commissioner of appeals has given a detail finding based on record. I do not find any infirmity in the impugned order. Consequently, the appeal filed by the Revenue deserves to be dismissed. Accordingly, I dismiss the appeal.
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