TMI Blog2020 (12) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... that Shri Karan Soni retracted from his statement before CJM, Varanasi immediately on the next date. However, he has not given any weightage to the said retraction only on the ground that Shri Karan Soni never bothered or never felt the need to bring to the notice of the immediate Superior of the investigating officer. As such, he observed that the case is not based merely on statement of the appellant but is corroborated in intimate details by the statement of Shri Karan Soni from whose possession the gold was seized - the Adjudicating Authority has not referred to any of the evidence corroborating the said statement. It is merely an observation simplicitor without any reference on record. Apart from the fact that gold in question was not carrying any marking of foreign origin, it is also seen that there is virtually no evidence of smuggled nature of said gold in question, except for the retracted statement of Shri Karan Soni. Gold can be imported on payment of duty and is not prohibited item. Even if it is assumed that for a second, that gold in question was of foreign origin, same could have been imported on payment of duty. Shri Karan Soni, in his statement has no where reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 pieces of gold bars. On being questioned, Shri Karan Soni revealed that he was bringing the said gold from Kolkata and taking the same to Ajmer. On a reasonable belief that the gold bars in question was of foreign origin and were smuggled in character, the same were handed over to the Customs for further action. The Customs officers brought Shri Karan Soni to Varanasi for further action and as no documents regarding sale purchase/ transportation of the recovered gold were produced by Shri Karan Soni, and as per his statement dated 12.04.2018, the recovered gold was brought into India from Bangladesh, the same were seized by the officers under a panchnama. Shri Karan Soni in his statement before the officers deposed that he was working for one Shri Prateek Goyal, Proprietor of M/s. Sawaria Seth Jewellers Ghee Mandi, Naya Bazar, Ajmer and at his instructions the gold was brought from one Shri Pradeep of Kolkata for carrying the same to Ajmer. On being questioned as to why the gold bars were not carrying any marking of foreign origin, he stated that same were smuggled from Bangladesh in a clandestine manner and to hide the identity of its foreign origin, gold bars were me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an option for redemption of gold is not legal and hence same should be set aside. 6. I have heard Shri Bipin Garg, learned counsel appearing for the appellant and Shri Santosh Kumar, Authorised representative appearing for the Revenue. 7. On going through the impugned orders and after appreciating the arguments advanced by both the sides, I find that the gold in question stand seized and confiscated by the Revenue on the ground that the same was of foreign origin and was smuggled into the country. On being questioned, learned Authorised Representative, appearing for the Revenue fairly agreed that there are no marking of foreign origin found on the gold bars. However, he submits that Shri Karan Soni in his initial statement has revealed that the gold in question was actually of foreign origin and was smuggled from Bangladesh but the marking of foreign origin stand removed. However, it is seen that there is no further revelation by Shri Karan Soni as to who has smuggled the gold and who had removed the foreign origin marking and in which manner the same was removed. The entire case of the Revenue is based upon the initial statement of Shri Karan Soni which was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-imposition of penalty upon Shri Prateek Goyal was never challenged by the Revenue and has attained finality. If that be so, by adopting the same reasoning for non-imposition of penalty on Shri Prateek Goyal, imposition of penalties upon the present two appellants are also required to be set aside inasmuch as apart from the retracted statement of Shri Karan Soni, there is no further or additional evidence against the present appellants. 9. Apart from the fact that gold in question was not carrying any marking of foreign origin, it is also seen that there is virtually no evidence of smuggled nature of said gold in question, except for the retracted statement of Shri Karan Soni. Gold can be imported on payment of duty and is not prohibited item. Even if it is assumed that for a second, that gold in question was of foreign origin, same could have been imported on payment of duty. Shri Karan Soni, in his statement has no where revealed as to how the gold in question was smuggled and by whom. In these circumstances, to conclude against the appellants is neither justified nor warranted. 10. Further, admittedly the gold in question was seized by the Police Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sent by Shri Lokesh Kumar Choudhary for sale of the same duly covered by the invoice in question. 12. It is also surprising that even though the Revenue is believing and relying upon the initial statement of Shri Karan Soni, detailing the name and address of the persons at Kolkata from whom the gold in question was received by him, they have not bothered to make any investigation at their end. There is no explanation coming from the Revenue for the said lapse on their part. Once Shri Soni discloses the names of the alleged supplier of the goods, it was the duty of the Department to approach them and to investigate at their end so as to collect the evidence and to corroborate the statement of Shri Karan Soni. Such non-action on the part of the Revenue, creates doubt against them and compels one to conclude that such an effort might have been done by Revenue and found to be untrue, thus making the statement unworthy of reliance. 13. Having held that the gold in question cannot be concluded to be of foreign origin and smuggled, I intend to refer to some of the leading judgements on the said issue. Reference can be made to Tribunal s decision in the case of Nitya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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