TMI Blog2019 (1) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter - Thus, the department could not adduce any evidence whatsoever to prove that the said two gold bars were smuggled in the two countries. Therefore, the presumption regarding the smuggled nature of seized gold under section 123 of the Customs Act, is not invokable. Neither seized gold could be legally confiscated under Section 111 (b) of the Customs Act, 1962 nor any penalty could be imposed on the appellant - appeal allowed - decided in favor of appellant. - Appeal No. C/75974/2018 - FO/77165/2018 - Dated:- 31-12-2018 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL) Shri H. K. Pandy, Advocate for the Appellant Shri A. K. Singh, A.C. (A.R.) for the Revenue ORDER The Facts of the case in brief are that proceeding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Father of Shri Ram Naresh Chaurasiya. The appellant, his father along with his other brother, Shri Harish Kumar Chaurasiya were residing along with their respective families in the said premises. Ram Naresh Chaurasia was not present at the time of search and it was his father Shri Yogendra Prasad Chaurasia, who was present during the search and whose statement was recorded by the Customs Officers, wherein he stated that one piece of Gold weighing 199 gms was received by his elder daughter-in-law Smt. Chhunu Devi, from her father at the time of her wedding in the year 1985 in the Khoincha Ceremony and the other piece of gold weighing 100 gms was received by his Grand-daughter during her Birth Ceremony in the year 1993, from her Maternal G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On appeal, the Ld. Commissioner (Appeals) dismissed the appeal filed by the appellant. Hence, the present appeal before the Tribunal. 7. The Ld. Advocate appearing on behalf of the appellant submits that there is no evidence on record to prove that the seized gold is of foreign origin and has been illegally imported into India from Nepal. There is no mark of foreign country in the two pieces of gold. He further submits that when the purity of gold was got tested by a local goldsmith on 12/11/2016, the goldsmith reported that the pure gold stands at 99.50%. It is his submission that it is a well known fact that purity of the foreign origin gold is of 99.9% and is also marked as such. Therefore, it is established beyond doubt that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s residing in joint family was that the two accused persons named him as one of the Hawala operators making money available with some Kamal Jain at Raxaul. But there is nothing in the Show Cause Notice to suggest that there was any link between the said two accused persons and the appellant in relation to the smuggling/accusation/possession of 4 kgs gold of foreign origin seized from them. It is his submission that the primary gold seized from the residential premises of the appellant has nothing to do with smuggling and those two lumps of primary gold were not smuggled. Accordingly, this is a case of possession of 299 gm gold in primary form. 10. Regarding lawful possession of gold, the appellant s father has consistently stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Vs. Commr. Of Cus., C. Ex. S.T., Siliguri 2016 (333) E.L.T. 448 (Tri.-Kolkata) 14. The Ld. DR appearing on behalf of the Revenue reiterates the impugned order and submits that seized gold was recovered from the residential premises and ample time was given to the appellant to produce documentary evidence thereof. The Ld. DR further submits that Shri Paras Kumar Chaurasiya, Father-in-Law of the appellant s brother is a resident of Nepal and accordingly, there is all probability that the seized gold was bought at Nepal and not in India. It is his submission that Nepal is not a producer of Gold and therefore, it cannot be denied that the gold might have been imported from the 3rd country. He further submits that local Jeweller on ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter again by her daughter-in-laws parent, resident of Parsa, Nepal. The same facts was reiterated by Shri Ram Naresh Chourasiya in his interrogatory statements dated 11.01.2016 and 25.05.2016. 18. I find that there is no dispute with the said two Gold Bars recovered from the residential premises owned by the appellant s father and the appellant and his brother Shri Harish Kumar Chaurasia were residing along with their respective families in the said premises. There is no dispute that the said gold bars did not have any foreign marking. No further investigation has been made by the Department thereafter. Thus, the department could not adduce any evidence whatsoever to prove that the said two gold bars were smuggled in the two countries. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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