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2020 (3) TMI 926 - AT - CustomsSmuggling - Gold - discharge of onus under Section 123 of the Customs Act - HELD THAT:- The appellant, Mr. Dinesh Bansal, who was in possession of the 59 gold bars, from the very time of interception and seizure, in his statement recorded under Section 108, soon thereafter, he has stated that he has purchased the gold bars from M/s.Lawat Jewellers Pvt. Ltd., Jaipur on the same day. This fact has been corroborated by Shri Suresh Soni, Managing Director of M/s.Lawat Jewellers Pvt. Ltd., recorded on the very next day i.e. 11.09.2002 before S.I.O., DRI, wherein he affirmed having sold the 59 gold bars in question to the appellant, Shri Dinesh Bansal also produced the invoices. He also stated that the gold bars were delivered by their employee, Shri Parmeshwar in the premises of the bank itself (when M/s. Lawat Jewellers took delivery of 150 gold bars from the Corporation Bank, Jaipur at about 1.15 p.m.) on 10.09.2002. Sofar, the issue of sale invoices in the name of Shri Pradeep Kumar (brother of Shri Deepak Bansal), cogent explanation was given by M/s. Lawat Jewelers, as they did not know the proper name of Shri Deepak Bansal and they only knew his nick name ‘Vicky’, they issued invoice in the name of his brother, who was also purchasing gold from them and the two brothers were operating their business from common premises at Kucha Mahajani, Chandani Chowk, Delhi. The driver of the Tata Sumo Vehicle has also corroborated the version of Deepak Bansal of purchase of gold bars from Jaipur. So far further investigation done by the Department resulted into the receipt of purported letter dated 10.12.2002 by fax from CSFB, Zurich by Corporation Bank, Mumbai. We find that this letter on the one side states that the CSFB has been supplying South African Origin gold from Rand Refinery and Harmony Refinery and thereafter, have vaguely stated that CSFB did not have stock of South African gold from July, 2002 and has supplied ‘Credit SUISSE’ brand gold from their own mint in Switzerland. This letter only creates a presumption, but is not conclusiveit is evidently clear that the subsequent change of the statement of the bank officers is under undue influence exerted by the Revenue Officers. Further, the said letter dated 10.12.2002 issued by CSFB through fax, is not a reliable piece of evidence, as it does disclose the context under which it is issued. Further, the person issuing the said letter on behalf of the CSFB has not been examined nor the authenticity of the fax message is established, under known process of law. The appellant, Shri Deepak Bansal has proved the source of acquisition and also the source of the source of acquisition. However, the mandate of Section under Section 123 (2) of the Customs Act requires a person in the possession of gold bars, having foreign markings, to only prima facie establish the proof of licit acquisition, and is not require to prove source of source - Also, Revenue has not been able to establish its allegation that the seized gold is different from the gold delivered by the Corporation Bank on 10.09.2002 to M/s. Lawat Jewelers. Appeal allowed - decided in favor of appellant.
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