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2021 (8) TMI 1168 - AT - CustomsAbsolute Confiscation - Smuggling - Gold Bars - 8 kgs Gold not claimed by anyone - 100 gms Gold recovered from Shri Ajesh A. Patel, Proprietor of M/s Patidar Bullion - levy of penalty u/s 112(b) of Customs Act, 1962 - HELD THAT:- Penalty on both the Appellants was imposed under Section112(b) of Customs Act, 1962 which provides for imposition of penalty on any person who acquires possession or is concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111 of the Customs Act 1962 - In the present case, the investigating DRI officers have booked two different type of cases investigated and covered in a Show Cause Notice and it being a common SCN, adjudicating authority has passed single Order-In-Original covering these two cases. Revenue has not proved smuggling of Gold into India. Hence, for imposing penalty u/s 112(b) ibid mens rea is necessary which is not coming out from records against the Appellant shri Jitendra Soni. Settled principle of law “Suspicion, however strong it may be, it can not replace the facts” needs to be applied in this case. Evidences on record are not sufficient to impose penalty on him. Suspicion in this case by Revenue has tried to replace the proof and this has resulted in an erroneous order passed by Adjudicating Authority against Appellant. Circumstantial evidence only is relied upon, unless it is conclusive on the fact of smuggling and Appellant dealt with smuggled goods knowingly, such circumstantial evidences cannot be taken to be the proof of the fact of smuggling for imposing penalty. If revenue wants that gold dealers of foreign marked gold in India should indicate the brand names with respect to each brand then foreign marked gold should have been declared as one of items under Chapter IVA of Customs Act, 1962 - This issue is settled (as revenue has not filed any appeal against above judgments). Thus, there is no requirement under prevailing law to mention brand or marks or numbers of foreign marked gold on sale/purchase documents. Hence, confiscation ordered deserves to be set aside in this case. Confiscation of 100 gms Gold recovered from Shri Ajesh A. Patel, Proprietor of M/s Patidar Bullion - HELD THAT:- Appellant has substantiated that the seized 100 gms gold was out of his stock inventory of legally purchased Gold. Appellant discharged burden of proof u/s 123 of Customs Act 1962 by maintaining normal business daily account with relevant documents of purchase/sale showing Opening Balance + Receipt – issue = closing stock, while dealing in Gold/silver purchased and sold in open market on large scale in market. Thus, confiscation of 100 gms Gold is not sustainable in facts of this case and deserves to be set aside. Appeal allowed in part.
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