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2020 (1) TMI 483 - AT - CustomsSmuggling - Gold Bullion - gold moved for the purpose of melting/re-melting - confiscation on reasonable belief that the goods were illegally imported into India through unauthorized route without any valid documents - HELD THAT:- The adjudicating authority has taken the view that the claim of lawful acquisition of the subject gold by M/s. Anjani Gold Private Limited, dealing with in Gold Bullion for years and handing over gold of such high value to a person without any written agreement is surprising and unacceptable. Non-mentioning of marks brand as found on two gold biscuits in the Tax Invoice and holding the subject gold for about three months in a stock was observed as deceitful attempt to salvage the seized gold. Learned Commissioner in passing the impugned order did not find that the burden of proof as envisaged under Section 123 of the Customs Act, 1962 had been discharged by the appellant. The appellant is the Director of a Company admittedly dealing with gold bullion. It is also on record that apprehension of Shri Amol Deshmukh with the subject gold was not brought to the notice of the claimant before he was produced to the Judicial Magistrate under arrest. On perusal of the statements recorded by the Revenue, it reveals that at no point of time ownership of the gold was agitated. The seized gold was duly recorded in the Books of Accounts of M/s. Anjani Gold Private Limited which was admittedly computerized. The purchase invoice issued by State Bank of India showing that 198015.52 grams in Customs auction is also not disputed by the Revenue - the obligation under Section 123 of the Customs Act, 1962 has been discharged by the claimant of the gold. The revenue has not been able to adduce any evidence to prove that the subject gold has been illegally imported by the appellants and the order of confiscation under Section 111(b) and under Section 111(d) of Customs Act is not sustainable as imposition of penalty under Section 112 is consequential to confiscation of goods under the Customs Act - imposition of penalty on the Director of a Company without making the Company a party to the proceeding is not justifiable and accordingly set aside. Appeal allowed - decided in favor of appellant.
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