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2022 (2) TMI 1022 - CESTAT KOLKATASmuggling from Myamar - Gold Biscuits - the goods mentioned in the invoices did not match with the actual quantity of the detected goods - Appellant has produced sufficient evidence to support his contention that the seized goods are not liable for confiscation or not - levy of penalty under Section 112(b)(i) of the Customs Act, 1962 upon the Appellant - discharge of onus to prove - HELD THAT:- The Adjudicating authority after having considered the documents produced by the Appellant has summarily held that the said documents were fabricated. However, there are no evidence available on record to support the finding in the adjudication order that the documents produced by the Appellant were fabricated. Had the Adjudicating authority suspected of such foul play, they could have easily examined the jewellers who had issued the invoices to the Appellant to establish the correct factual position. Therefore, the Appellant has produced sufficient evidence in support of its claim for ownership of 2158 gms of seized goods. The Revenue has failed to establish beyond reasonable doubt that the seized goods had indeed been smuggled from Myanmar. In order to hold that the seized goods are smuggled goods, the Revenue has sought to rely upon Order-in-Original No.CCP/NER/15/2019 dated 24.09.2019 to state that certain goods, being gold biscuits with ‘KTS’ marking had been seized by the Customs authorities in another matter and the seized goods in the instant case having ‘KTS’ marking ought to be from the same batch. However, we find it difficult to accept the contention of the Revenue in the absence of any expert report and/or pictorial evidence establishing any similarity between the goods seized and adjudicated vide Order-in- Original dated 24.09.2019 and the goods seized from the Appellant. Further, it may not be out of place to note that merely because two separate goods have similar markings, it is not sufficient to conclude that both such goods originated from the same place. In the instant case, the Appellant has produced receipts from Kanaram Tarachand & Sons, jewelers in respect of 13 biscuits melted and converted by the Appellant. In view of the fact that the Adjudicating authority had the details of the jewelers in both cases, adjudicated vide Order-in-Original dated 24.09.2019 and the instant case, they could have easily examined the jewelers to establish whether the goods belonged to the same batch. However, unfortunately this exercise has not been carried out by the Adjudicating authority - the Appellant cannot be made to suffer for lapses on the part of the Adjudicating authority. Although there have been certain inconsistencies in the submissions made on behalf of the Appellant, the Adjudicating authority has failed to satisfy that the seized goods were goods brought from a place outside India, and therefore, the provisions under Section 111 of the Customs Act cannot be invoked - the Appellant has duly discharged the burden of proof under Section 123 of the Customs Act, 1962 - 2158 gms. of gold, being 13 gold biscuits of “KTS” marking, be released in favour of the Appellant after verifying the originals of the receipts and Vasihatnama produced by the Appellant before this Tribunal - Matter is remanded to the Adjudicating authority to issue a fresh Show Cause Notice to Mr. Vishal in respect of the remaining 1328 gms. of seized goods of which he has claimed ownership. Appeal allowed by way of remand.
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