TMI Blog2018 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S. N. Mitra, Asstt.Commr. (A.R.) for the Revenue Shri Arijit Chakraborty, Adv. for the Respondent ORDER Per Shri P. K. Choudhary This is an application filed by the Revenue seeking condonation of delay in filing the appeal before this Tribunal. 2. In view of the reasons explained in the application, the delay is condoned. The Miscellaneous Application (COD) is allowed. 3. During the course of argument, it is seen that at the time of filing of Misc.Application (COD) before the Tribunal enclosing all appeal papers, the Registry has erroneously given an additional Cus.Appeal No.76280/2017, which has not been originally filed by the appellant before the Tribunal. Accordingly, the same is dismissed as infructuous. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) set aside the Adjudication Order and allowed the appeal with consequential relief to the Respondents. 7. Hence, the Revenue filed these appeals. 8. Heard both sides and perused the records. 9. The Learned A/R for the Revenue reiterated the Grounds of Appeal. It is submitted that the Respondents submitted the documents after two months twenty six days from the date of seizure. It is further submitted that during the investigation one of the purported purchaser of the gold had not appeared in response to the Summons. It is also submitted that gold is notified item under Section 123 of the Customs Act and the burden of proof is lying with the person to establish that the same is not smuggled one. 10. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not having any foreign inscription or marking. 22. Suspicion/Presumption howsoever strong because of four pieces of samples having purity of 99.9% cannot take theh place of evidence and cannot be a ground for confiscation of the seized goods under Section 111 of the Customs Act, 1962. Under the above facts and circumstances and in view of judicial pronouncements cited supra, I am of the considered view that the Department was acting on no evidence and there is no iota of evidence that seized gold bars are of foreign origin or smuggled into India and the Department by way of investigation could not reveal that documents produced by the owner of the said seized goods are false or fabricated. As the burden cast upon the appellants unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are smuggled one. The burden of proof that they are not smuggled goods shall be on the person who claims to be the owner of the goods so seized. In the present case, the prima facie case there is no material available that the goods are of smuggled nature. 12. The Learned A/R for the Revenue submitted that the Respondent could not produce his documents at the time of seizure. 13. I find that the goods were seized at a melting shop at Kolkata. The Learned Counsel for the Respondents submitted that it is a registered melting shop and there is no material available that the goods are of foreign origin and therefore the confiscation of the goods is not justified. Accordingly, I do not find any reason to interfere with the Order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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