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2023 (10) TMI 827 - AT - CustomsConfiscation of Gold bar with an option to pay redemption fine - absolute confiscation of currency - levy of penalty under Section 112(b) Customs Act - misuse of EOU Scheme by mis-declaring export jewellery in terms of purity of the gold - burden to prove - HELD THAT:- There are force in the contention of the learned Counsel for the Appellant that the entire case is built on assumptions and presumptions against the appellant. In the very first instance on the next day after DRIs search and seizure of gold bar and cash, the Appellant gave documentary evidence like Purchase Invoice of M/s Somya Bullion & Jewellers, Cash Ledger, Stock Ledger, Balance Sheet and Trial Balance showing legal acquisition and ownership of the gold and cash. The Appellant’s Stock Ledger clearly showed that he had 1218.255 grams of gold on 19.12.2016 from which DRI seized 1kg gold bar. There are force in the arguments of the learned Counsel for the Appellant that the marking on the gold bar seized from the appellant’s premises matches neither with the gold imported by M/s Mahalaxmi Jewel Exports by Bs/E No 8974 dated 2.10.2016 and 10240 dated 1.12.2016, nor the gold recovered from the residential and factory premises of Shri Prem Sagar Arora. This also points to the fact that the gold bar seized from the appellant is not diverted duty free gold by M/s Mahalaxmi Jewel Exports - also no link has been found between the gold imported by M/s Mahalaxmi Jewel Exports and the 1kg gold bar seized by DRI from the appellant’s shop. Since documentary evidence has been presented in favour of the gold showing the Appellant’s legal ownership and acquisition, it is held that tenets of Section 123 Customs Act are satisfied and the Appellant has discharged the burden of proof. The Appellant’s statement also reiterates the same - the appellant’s submission agreed upon that the Department has not shown any proof that the seized cash was sale proceeds of smuggled gold and thus confiscation under Section 121 Customs Act is unsustainable, more so since the appellant’s Books of Accounts clearly reflect that this was part of his Cash in Hand and had been received from legitimate sources. There can be no confiscation of the seized gold bar and currency under the Customs Act, 1962 and it is accordingly quashed. Imposition of penalty on the Appellant is also untenable and is set aside. Since the impugned order qua the Appellant cannot be sustained, it is set aside - Appeal allowed.
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