TMI Blog2018 (4) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... ion upheld - quantum of penalty reduced - appeal allowed in part. - C/20859-20860/2017 - Final Order No. 20522 - 20523 / 2018 - Dated:- 4-4-2018 - Shri S. S. Garg, Judicial Member Mr. T. P. Muthanna, Advocate For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per : S.S. GARG Appellants have filed these two appeals against the common impugned order dated 20.1.2017 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellants and upheld the Order-in-Original. Since the Commissioner (A) has passed a common order as the facts are common in both the appeals, therefore, both the appeals are being disposed of by this common order. 2. For the sake of convenience, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated and imposed a penalty of ₹ 3,00,000/- each on Mr. Bhakta and Mr. Nayak under Section 112 of the Act, and the proposal of the penalty on Shri Surendra Kamath, owner of Popular Jewellers, Mangalore was dropped due to lack of evidences. Aggrieved by the Order-in-Original, both the appellants filed appeals before the Commissioner (A) and the Commissioner (A) vide the common impugned order rejected their appeals and hence, the present appeals. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law in proper perspective. He further submitted that the Commissioner (A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Mumbai: 2001 (127) ELT 415 (Mumbai) * Mahesh B. Mali vs. Commissioner of Central Excise, Pune: Appeal No.C/798/10-Customs, Excise and Service Tax Appellate Tribunal, Mumbai. 5. On the other hand, the learned AR defended the impugned order and submitted that the Commissioner (A) has rightly confiscated the gold as the appellants have not been able to justify the possession of the said gold bearing markings RAND REFINERY 995.0 and 995.0 MELTER ASSAYER 0082414 . He further submitted that Shri B. Rathnakar of Rathan Jewellers, Mangalore has certified in his report that the said gold bars were of foreign origin and were of 24 carat purity. The learned AR further submitted that both the appellants have made contradictory statements re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Mr. Nayak had sold some immovable ancestral property at Udupi District and he, along with Mr. Bhakta had purchased the gold bars for Rs.26 lakhs from one Mr. Surendra Kamath, owner of Popular Jewellers from Mangalore. Further, I also find that when the statement of Mr. Nayak was recorded by DRI he has said that the gold belongs to their family and was purchased from Mumbai and is only kept for safe custody with Mr. Bhakta. But it is a fact that no document has been produced by both the appellants to prove that the said gold were procured with licit documents and that proper customs duty was paid on it. Further, it is also not disputed that the said gold bars were of foreign origin and bearing markings RAND REFINERY 995.0 and 995.0 MELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Mulla and it is on record that at that time also the appellant was unable to indicate how he came into possession of the said silver bars in question. Further, I find that the Advocate of the appellant had sought cross-examination of many people before the lower authorities, which was granted and despite this, no evidence is brought on record by the appellant before the adjudicating authority nor before me, to press home the point, that the appellant had licit possession of the silver bars. The only ground of the appellant is that these silver bars were having serial number affixed by indigenous refinery and no foreign marking were found on the silver bars is unsubstantiated by any evidence, that these very silver bars (as seized) were re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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