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2021 (10) TMI 1237 - AT - CustomsSmuggling - Gold - Absolute confiscation - option was not given to the appellant for redemption as per Section 125 of the Customs Act, 1962 - levy of penalty u/s 112(a) & (b) of the Customs Act, 1962 - HELD THAT:- The Commissioner (Appeals) in the impugned order, has referred to a decision of Hon’ble Kerala High Court in the case of COMMISSIONER OF CUSTOMS, KERALA VERSUS OM PRAKASH KHATRI, DHIRAJ KUMAR DEVASI, SURENDRA SINGH RAO AND PANNA GOLD IMPEX LTD [2019 (3) TMI 457 - KERALA HIGH COURT] which thereafter was upheld by the Hon’ble Apex Court in OM PRAKASH KHATRI VERSUS COMMISSIONER [2019 (11) TMI 796 - SC ORDER] - it was held in the case that The appellant was unable to explain the source of the gold which was confiscated. In the circumstances, we find no merit in the civil appeals, which are accordingly dismissed. The above decision may not come in the way of a legitimate owner if the source of gold is established. The Order-in-Original does not record as to any such queries or any answer thereto from the appellant, and hence it is necessary in the first place to ascertain if the appellant can explain the sources before the adjudicating authority and if not, then the ratio of the Supreme Court judgment in OM PRAKASH KHATRI VERSUS COMMISSIONER [2019 (11) TMI 796 - SC ORDER] would apply. An attempt was made before this forum by the appellant by filing a copy of the tax invoice, to which learned DR objected to seriously, contending that firstly the same was not furnished before the lower authorities and secondly, the said document is clearly an afterthought, with no signature of the buyer. Case remitted back to the file of adjudicating authority who having failed in the first instance to offer redemption option, shall now offer the same to the appellant, and then it is for the appellant to clear the test prescribed by the Apex court - the matter is restored to the file of adjudicating authority who shall pass a fresh order - appeal allowed by way of remand.
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