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2015 (10) TMI 417 - AT - CustomsSmuggling of gold - Bonafide belief - whether Shri Om Prakash Verma has attempted to smuggle the gold to Nepal or not - Held that:- Case of the revenue is that they were having an intimation that some person will smuggle the gold through this check post in Nepal and they have called the pancha for the same. But in the cross examination of one of the pancha Shri Madan Tiwari.it is clear that when he was called at Khunwa office Shri Om Prakash Verma was very much present over there. It means that when the panchas were called Shri Om Prakash Verma was there and as per the panchnama the panchas were present before Shri Om Prakash Verma was apprehended. Therefore, the panchanama was doubtful. - gold is of foreign origin and primary burden of proof lies on the respondent and Shri Anand Kumar Proprietor of M/s. Abhishek Jeweler has produced the invoice in support of the procurement of the gold. Therefore, primary burden of proof has been discharged by the respondent. Now, it is for the revenue to prove that the gold in question was intended to export to Nepal by unfair means which revenue has failed to prove. - Moreover, when panchnama itself is doubtful, therefore, statements have no relevance. - If the statement is retracted after a gap of time the retraction is not admissible. In this case panchnama and statement are doubtful with the cogent evidence. Moreover, the statement has not been corroborated by any tangible evidence to testify the statement of Shri Om Prakash Verma - Decided against Revenue.
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