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2023 (7) TMI 591 - AT - CustomsSmuggling or not - Town Seizure - Absolute Confiscation of gold - penalties - burden to prove - whether 3327.40 gms of gold can be absolutely confiscated without having any iota of evidence that the gold being smuggled in nature? - HELD THAT:- In fact, it is a case of town seizure and the appellants were carrying job-work voucher with them in support of their claim. Moreover, the test report also certified that the purity of the gold is not up to the mark and the gold which is seized having no foreign marking to prove its foreign origin - In that circumstances, it is to be seen that can it be alleged that 3327.40 gms of gold is of foreign origin. Admittedly in the case in hand it is a case of town seizure and gold in question was not bearing any marking of foreign origin. Moreover, purity of the gold is also less than the purity of foreign origin gold. In that circumstances, the provision of section 123 of the Customs Act, 1962 are not attracted to allege that the 3327.40 gms of gold in question is smuggled one - Moreover, the statements recorded during the course of investigation have been retracted by the appellants during the course of adjudication by way of cross-examination, but no procedure has been followed in terms of section 138B of the Customs Act, 1962 to testify the statements recorded during the course of investigation, therefore, as held by the Hon’ble Punjab & Haryana High Court in the case of M/S JINDAL DRUGS PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT] and M/S AMBIKA INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 919 - PUNJAB AND HARYANA HIGH COURT], the statements are not reliable statements. In that circumstances the Revenue has failed to make out a case against the appellants, therefore, the impugned order qua absolute confiscation of 3327.40 gms of gold is liable to be set aside and penalty on the appellants are not imposable - appeal allowed.
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