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2023 (9) TMI 415 - AT - CustomsService of SCN within stipulated time - Smuggling - Gold - foreign origin goods or not - entire case based on the confessional statement of Babu Ram - discharge of onus of proof by Revenue or not - HELD THAT:- The Appellant had filed Affidavit in support of the contention regarding non-service of SCN prior to 28.11.2018. Learned AR in response, informed that he has written to the concerned Adjudicating Authority, and the DRI/DZU on 11.5.2023 itself. However, the compliance was awaited. Accordingly, some more time was prayed and by way of last opportunity, time was allowed and the date of further Hearing was fixed on 02.06.2023. On 2.6.2023, learned AR stated that he has not received any reply or instructions in the matter. Accordingly, the Appeal was heard and Order was reserved. Even after conclusion of the Hearing till date, there is no submission on behalf of the Revenue as regards the service of SCN within the stipulated time. It is found from the facts and circumstances and the evidence led by the Appellant (owner of goods) that he has discharged the onus under Sec 123 of the Act by leading sufficient documentary evidence like (i) copy of challan, (ii) copy of tax invoice, (iii) copy of stock ledger and (iv) copy of bank statement. The Bank statement further certifies that the payment has been made for the purchase of the gold in question through banking channel. Further the tax invoice reflects that GST has been deposited on the transaction - the Appellant has discharged the onus under Sec 123 of the Act - allegations of Revenue are based on assumptions and presumptions as the evidence led by the Appellants have not been found to be incorrect or false. The whole proceedings are vitiated as the SCN has not been issued and served within six months as required under Sec 124(a) read with Sec 110(2) of the Act. The Revenue are directed to return the seized/confiscated goods forthwith to the Appellant, Mr. Neeraj Aggarwal - the Impugned Orders are set aside - appeal allowed.
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