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2023 (4) TMI 174 - AT - CustomsAbsolute Confiscation - Smuggling - gold coins - silver granules - Indian currency - purity of seized gold bars - Retracted statement - statement of co-accused without any corroborative evidence - burden of prove - notified items under Section 123 of the Customs Act, 1962 - HELD THAT:- During the course of investigation, the gold was seized, which is deemed to be believed as foreign origin and the currency seized is to be believed the sale proceeds of smuggled gold of foreign origin. It is the fact on record that there is no mark found on the gold seized. Moreover, purity of gold was also found 99.5% and not 99.9%. Further, during the course of investigation, the Noticee No.(1) has made a statement stating that the source of procurement of the said gold is made from an old jewellery purchased in exchange of cash during the long period of time and due and the stock of gold was melted through the said old jewellery and converted into gold bars. The said fact has not been verified by the Revenue. As the noticees have explained the source of procurement of gold, which is not denied by the Revenue, further having no mark on the gold and purity of gold is also not in conformity of the foreign gold, the benefit of doubt goes in favour of the notices. As the Noticee No.(1), (2) & (3) have submitted the smuggled/procured gold in question is made out of old jewellery purchased in cash and the said fact has not been denied by the Revenue by any cogent evidence, therefore, it is held that the gold in question is not liable for confiscation and hence, the same is required to be released - Revenue has failed to establish the fact that the cash recovered from the Noticee No.(1) (2) & (3) are the sale proceeds of the smuggled gold, therefore, the cash seized cannot be confiscated - No penalties are imposable on the Noticee No.(1), (2) & (3). The proceedings initiated by the impugned show-cause notices are set aside - Appeal allowed - decided in favour of appellant.
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