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2022 (8) TMI 840 - AT - CustomsConfiscation of seized goods - levy of penalty - 3 pieces of gold bars - discharge of burden of proof under section 123 of the Customs Act, 1962 - HELD THAT:- Mere mentioning during investigation on 28.02.2014 by Vikash Agarwal that the purchase was from Jalan & Co. of Kolkata, cannot be even a circumstance to discredit the documentary evidences produced before the investigating authority and subjected to vivid investigation by DRI. It is apparent that DRI has also recorded subsequent statements of Vikash Agarwal and followed the trail of his purchase from Harimanthan Jewellery House Pvt. Ltd. and being unsuccessful in disproving such transaction between the parties, an effort has been made to raise doubts only upon suspicion, which cannot sustain in law. In such a circumstance, the genuity of transaction between Agarwal Gold House and Harimanthan Jewellery House Pvt. Ltd. under Invoice dated 15.02.2014 for purchase/ sale of 1000 gms. of pure gold is well established upon documents. There is nothing on-record from the investigating authority to deny the stock of pure gold available with Agarwal Gold House as on 01.04.2013 and as such, there is no evidence on-record to doubt that the seized gold was not from the said stock and subsequent purchases of Agarwal Gold House, which were handed over to Mohanlal @ Ram by Vikash Agarwal. The only question, thus, remains whether the appellants, specially Sri Vikash Agarwal, Proprietor of M/s. Agarwal Gold House has been able to discharge his burden of proof u/s. 123 of the Customs Act, 1962 in the facts of the present case. There is nothing on-record from the investigating and/or adjudicating authority to controvert the evidences produced by the Appellants in the present case. In such a circumstance, the order of confiscation of the seized gold weighing 1958.240 gms. under section 111(d) of the Customs Act, 1962 only on suspicion and presumption, is bad in law and cannot sustain and hence, we set aside the same with consequential relief to the claimant/ Appellant Sri Vikash Agarwal, Proprietor of M/s. Agrawal Gold House - penalties imposed upon the Appellants under section 112 of the Customs Act, 1962, are also set aside. Appeal allowed - decided in favor of appellant.
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