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2024 (1) TMI 786 - CESTAT KOLKATASmuggling - attempt to export the gold jewellary through illicit route of Bangladesh border - penalties - HELD THAT:- The gold jewellary were recovered from the possession of Shri Chandi Biswas by the BSF officers in the Barantala Bazar and the same were handed over to the Customs officers for further necessary action under Customs Act - It is observe that the investigation has not brought in any evidence on record to substantiate the allegation that there was an attempted export of the said gold jewellary. The appellant has submitted documentary evidence in the form of three invoices claiming ownership of the gold jewellery seized. There is no investigation conducted by the department to ascertain the genuineness of the invoices. Shri Chandi Biswas in his statement dated 30.10.2018 stated that he was permanent staff of Shri Goutam Halder and the gold was handed over to him by the said Shri Goutam Halder for handing it over to M/s. Majumdar Jewellers. The investigation has not brought in any evidence to disprove this claim. Accordingly, the allegation of attempted export of the gold jewellery in the impugned order is not substantiated. In view of the above, the confiscation of the gold in the impugned order is not sustainable. Penalties - HELD THAT:- Shri Chandi Biswas was holding the gold ornaments having purity of 91.6%. It was handed over to him by Shri Goutam Halder for giving it to Shri Biplab Majumdar. The impugned order has not brought on record the offence committed by each one of the appellants warranting penalties on them. As there is no evidence available on record for the attempted export as alleged in the impugned order, the penalties imposed against all the three appellants are not sustainable. Appeal allowed.
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