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2019 (9) TMI 334

..... e seized gold was less than purity of gold of foreign origin. Further, revenue also could not establish from where the gold was smuggled. On the contrary the appellant has established that he has procured the said gold from Shri Shivanshu Agarwal after making payments through banking channels. It was up to revenue to further investigate as to from where Shri Shivanshu Agarwal has obtained the same. Though it is not available on record but it is more probable that after investigation with Shri Shivanshu Agarwal, revenue could not bring out any evidence to establish that Shri Shivanshu Agarwal had obtained smuggled gold and therefore, no such evidence is forth coming from the record. After taking note that the purity of gold was less than the .....

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..... 18. Shri Bipat Bind also stated that Shri Neeraj Agarwal owns a shop by the name M/s Raj Shree Jewelers at Basnahi Bazar, Mirzapur . The Officers got conducted chemical examination of seized gold through CRCL and the examination report revealed that the purity of gold in the seized gold was 99.63%, 99.79% & 99.70%. Further, investigations were carried out by DRI Officers with Shri Neeraj Agarwal of M/s Raj Shree Jewelers, Mirzapur. During the search conducted at the business premises of M/s Raj Shree Jewelers, the DRI Officers recovered a delivery challan book where delivery challan from Sl. No.01 to 06 were issued. The carbon-copy of letter dated 30.01.2018 was available which indicated that Shri Neeraj Agarwal had issued 3.00 Kg of go .....

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..... n contest the said show cause notice was adjudicated through the impugned Order-in-Original wherein the learned Original Adjudicating Authority on page no.56 of the impugned Order-in-Original has given his finding that the story regarding purchase of gold by Shri Neeraj Agarwal from Shri Shivanshu Agarwal was connected in view of the facts that Shri Shivanshu Agarwal vide letter dated 30.07.2018 submitted that he has no relation with the seized gold, therefore, the Original Authority concocted that the seized gold was liable for absolute confiscation and therefore, ordered for absolute confiscation of the same and imposed a penalty of ₹ 25 lakhs and 15 lakhs on Shri Neeraj Agarwal under Section 112 (b) and Section 114AA of Customs Act .....

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..... The gold seized was not of foreign origin, which could establish from the fact that neither foreign marking has been specified by DRI nor the CRCL report i.e. report of Chemical Examiner indicated the gold to be having purity of 99.9%. The Foreign origin gold contains 99.9% purity whereas the purity of gold of the seized gold was 99.63%, 99.79% & 99.70% in all the samples drawn. The finding of the Original Adjudicating Authority that since Shri Shivanshu Agarwal vide his letter dated 30.07.2018 submitted that he has no relation with the seized gold is the basis for decision by learned Original Adjudicating Authority whereas the said plea of Shri Shivanshu Agarwal was not accepted by the investigating officers and investigating officers .....

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..... stablished that he has procured the said gold from Shri Shivanshu Agarwal after making payments through banking channels. It was up to revenue to further investigate as to from where Shri Shivanshu Agarwal has obtained the same. Though it is not available on record but it is more probable that after investigation with Shri Shivanshu Agarwal, revenue could not bring out any evidence to establish that Shri Shivanshu Agarwal had obtained smuggled gold and therefore, no such evidence is forth coming from the record. Further, Shri Shivanshu Agarwal is also not made a party to the proceedings for imposition of penalty on him for dealing with smuggled gold. After taking note that the purity of gold was less than the gold of foreign origin and M/s .....

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