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2024 (4) TMI 444 - AT - CustomsSmuggling - Gold of foreign origin - Absolute Confiscation - town seizure - reliability of statements/retraction of statements - cross-examination of witnesses - recording of statements in gross violation of order given by the Apex Court in the case of Shafhi Mohammad vs The State of Himachal Pradesh [2018 (4) TMI 1830 - SUPREME COURT] - onus to prove u/s 123 of CA - HELD THAT:- It is found that the owner of the gold in question Mr. TPK, at the very initial stage of being questioned by Revenue, has stated that the gold is out of stock in trade. Further, he has lead evidence that as per his stock register, he was having 6303.804 gms of gold. Thus, issue of 1431.61 gms of gold, after adjusting the sales made till 23.08.2020 on the date on which gold in question was sent for conversion into ornaments through his employee – Mr. CNR, stands fully explained. The Adjudicating Authority has made an attempt to compare the stock position as on 30.09.2020 which is not at all relevant and is wholly mis-conceived. In case of ascertaining stock position the relevant date is the date on which availability is claimed, which is fully satisfied in the facts of the present case. It is further found that the appellant has also shown and accounted for the seizure of 1431.61 gms of gold by the DRI, in his books of accounts, which is also reflected in their balance sheet. It is further found that both Mr. CNR and Smt. Padma Priya. V, of M/s JRV Jewellers have retracted their statements in reply to SCN. Further, it is found that these persons, in spite of the retraction being in the knowledge of Revenue, were not examined by the Adjudicating Authority in the adjudication proceedings. Thus the retraction goes un-rebutted. Further, it was the onus of the Revenue to establish that the statements were given voluntarily without any pressure or duress, as held by the Hon’ble Supreme Court in the case of Vinod Solanki [2008 (12) TMI 31 - SUPREME COURT]. It is an admitted fact that the seizure is by way of town seizure and further there were no markings on the gold bar/pieces indicating foreign origin. Further, it is evident from the report of the valuer that the bars are of irregular shape and size being of the weights – 538.980 gms/842.550 gms/43.6 gms/6.480 gms. Thus, the shape and weight of the bars also speak for itself that these are not of any foreign origin as it is known in the trade circle that gold of foreign origin is of standard weight and shape of 100 gm/1 kg and also has the marking of the refiner with the unique serial number. The appellants have submitted various documents in support of their contention as regards source of gold being extract of their books of accounts and registers, financial statements like balance sheet and profit and loss account, copy of GST returns, copy of challan issued for sending gold to Coimbatore through Mr. CNR. Such documents have not been found to be untrue. Accordingly, the appellants have discharged the onus under section 123 of the Customs Act - the entire proceedings are vitiated as SCN has been issued after more than 6 months from the date of seizure. The appellant – Mr. T. Pavan Kumar shall be entitled to release of 1431.61 gms of 24 ct gold and if the same has already been sold, shall be entitled to the sale proceeds with interest, as per Rules - the impugned order set aside - appeal allowed.
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