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2022 (5) TMI 393 - AT - CustomsReduction of redemption fine and penalty - Smuggling - foreign origin gold - dismantled power tools such as Ryobi brand 6” Orbittal Buffer car cleaning machine, steel measuring tapes, etc. - confiscation made on the basis of voluntary statements of the assessees - proper verification not carried out - non-speaking order - HELD THAT:- It is clear that judgements are available which are supporting the counter-stand of both the parties. This makes it clear that the applicability of the judgements would depend on the facts of each case and hence, it is essential that proper facts be brought on record in the first place, to apply the judgements. When the assessee-appellant himself admits that the gold pieces given by the customers were being melted and converted into gold rings, there should be some documentary evidence, at least identifying the owner of such gold pieces, but apparently no such attempt seems to be made to place on record any such vital documentary evidence. This minimum effort having not been done, mere reliance on the voluntary statement is not justified - further it is found from the records that the Revenue had entertained a doubt that the assessee-appellant had improperly imported gold into India. Section 11 of the Customs Act, 1962 deals with the power to prohibit importation or exportation of goods; (2) (f) thereunder prohibits uncontrolled import and export of gold or silver. Section 101 ibid. empowers the Revenue to search suspected persons in certain cases. It is for the assessee-appellant, who has canvassed to having retracted his statement recorded under Section 108 ibid., to explain before the Revenue authorities as to the source of the gold in question, including the names and addresses of its customers. The same would also apply to the half cut piece of gold bar with the marking “Cambi, Suisse 100 gm Gold 999.9”, since the initial burden, within the meaning of Section 123 ibid., is always on the person from whose possession the gold, including the one with foreign marking, is seized, to prove that none of the seized gold was smuggled. The retraction statement does not deny the seizure of gold through the Mahazar and in the said retraction, he has clearly admitted, voluntarily, that the gold in question belonged to his customers - It is well-settled that when a retraction is made, then both the original statement as well as the retraction statement have to be looked into very carefully and hence, once a retraction is made, the burden is more on the appellant to place on record the identity of his customers since he had only admitted that the gold seized belonged to them. In the Order-in-Original, apparently, the so-called retraction is not considered; as admitted in the said retraction, if the first assessee-appellant is able to place on record the details of his customers, who are the owners of the seized gold, then, the situation may be different, in which event, perhaps, the order of confiscation may vary - In respect of the seizure of gold bar with foreign marking, undoubtedly it is a town seizure. The assessee-appellant has nowhere offered any explanation as to the source of the same and hence, the same is liable for absolute confiscation - These aspects have not at all been considered and discussed in the orders of the lower authorities and hence, to this extent, the Order-in-Original is a non-speaking order. The First Appellate Authority has also not considered these aspects, including the contentions of the assessee-appellant as to retraction and hence, to this extent, the impugned order is also a non-speaking order. The matter is remanded to the file of the Adjudicating Authority. The Adjudicating Authority shall consider the retraction statement in the light of the discussions contained hereinabove and the requirement of law - Appeal allowed by way of remand.
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