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2024 (2) TMI 378 - CESTAT ALLAHABADImposition of penalty under Section 112(b) of the Customs Act, 1962 - Smuggling - Gold bars of foreign origin - illegally imported goods - Burden to prove foreign origin of gold - no corroborative evidences - HELD THAT:- While the Revenue has initiated the present proceedings against the Appellants on the basis of recovery of confiscated gold bars from Shri Rakesh Kumar and Shri Girish Chandra, both the said persons have disputed the said recovery. As per them, the subject gold bars were not recovered from them and they were falsely implicated in the matter. The two Appellants were therefore disputing the correctness of the Panchnama dated 30.03.2019. Law in this regard is well settled that Panchnama is merely a record of what the panch sees and the only use to which the panchnama can be put is that when the panchas go into the witness box, the panchnama can be used as a contemporary record to refresh his memory. Once the two Appellants disputed the fact of recovery of confiscated gold bars from them and also disputed the panchnama dated 30.03.2019, the panch witnesses were required to be offered for cross-examination so that the truth of the contents of the panchnama and the recovery made from the two Appellants could have been established - In the present case, though the opportunity to cross-examine the two panch witnesses was allowed but the said panch witnesses never appeared for cross-examination. In this view of the matter, it would not be safe to conclude regarding recovery of confiscated gold bars from the two Appellants only on the basis of panchnama, without corroborating the contents of the same with some other evidences. There is also no allegation in the show cause notice on the basis of call record details that the location of Shri Rakesh Kumar and Shri Girish Chandra was in Kolkata anytime during the period from 28.03.2019 to 30.03.2019. Further, as rightly pointed out by the Ld. counsel for the Appellants, the call record details is also in respect of some other phone numbers, the reference of which is not coming from the recorded statements or the enquiry made and have been straightaway referred to in the show cause notice. Thus, no concrete evidence is forthcoming in favour of the revenue on the basis of call record details. The Revenue has also not got the confiscated gold bars tested by touchstone method to test the purity of the confiscated gold bars. In these circumstances, the initial burden to prove foreign origin of subject gold bars has not been established - The entire case of the Revenue appears to be based on assumptions and presumptions and the same cannot take place of substantive evidence and accordingly, it cannot be held that the Appellants have in any manner dealt with the goods liable to confiscation under Section 111 of the Customs Act and consequently they cannot be subjected to penalty. Since the initial burden of proving the alleged illegal importation of gold bars of foreign origin has not been discharged by the Revenue and no corroborative evidence has been brought on record to support the case made out against Shri Girish Chandra and Shri Rakesh Kumar, the proceedings against the Verma Brothers also cannot sustain - Appeal allowed.
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