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2023 (7) TMI 1131 - AT - CustomsLevy of Penalty u/s 112 (b) (i) of the Customs Act - Smuggling of Gold Bars - non-production of valid documents for the legal import/possession of the gold bars - discharge of onus to prove - allegation based on retracted statements - HELD THAT:- The statements were retracted within few days at the first opportunity when the appellant (and others) was produced before the court of the magistrate. It is further found that arranging of Creta car for the purpose of smuggling by this appellant, as alleged, is not established as the said car is admittedly purchased by Mr. Sohan Singh and payment for the same was made through banking channel to the seller. From the facts on record, it is not established that this appellant was paying the rent for the Noida flat, where other persons alleged to be involved in smuggling were living. Further, it is found that no statement have been recorded of the landlord in support of allegation of the revenue. Further admittedly gold in question does not belong to this appellant, nor he has claimed the said gold from the department. It is further found that the whatsapp chat relied upon by revenue is also not supported by the appropriate certificate as required under Section 138C of the Act. The revenue have placed reliance on the diary, stated to be recovered from the Noida flat, but the appellant was never put any question regarding the contents of the said diary. Thus the contents of the said diary have been wrongly relied upon by revenue in imposing the penalty. Further admittedly the name of the appellant is not mentioned in the said diary, wherein the name of one Anchal Jain is mentioned, from whom money is received as per the diary for expenses. There is violation of the provision of Section 138C of the Act, as well as the principles of natural justice. It is also found that it is the case of town seizure, and revenue have not laid any evidence as to the smuggled nature of gold, save and except assumption and presumption, and relying on the retracted statement. The provision of Section 123 of the Act are not attracted on this appellant, as neither he was found in possession of the gold, nor have claimed the seized gold. The penalty provision under Section 112(b)(i) is not attracted - Appeal allowed.
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