TMI Blog2022 (11) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the Appellant. Sh. P. Amaresh, Authorised Representatives for the Respondent. ORDER The appellant is in appeal against confiscation of one piece of gold bar weighing 476.640 gms. valued at Rs. 15,63,790/- under Section 111(a), (b), (d) and (l) of the Customs Act, 1962 without option of redemption, confiscation of cash Rs. 14,44,000/- under Section 121 of the Customs Act and imposition of consolidated penalty of Rs. 10 lakhs under Section 112(a) and 112(b)(i) of the Act. By the impugned order-in-appeal, the adjudication order has been confirmed with the modification that the amount of consolidated penalty has been reduced to Rs. 6 lakhs. 2. Brief facts of the case are that the appellant J. Suresh is engaged in trading of gold/ silver/ bullion at Vijayawada having its shop at Pavani Gold Plaza, Sivalayam Street, Vijayawada. 3. That on the basis of some intelligence, Officers of DRI Hyderabad intercepted one Mr. T. Nandu on the road near Kaleswara Road, Vijayawada. Mr. T. Nandu was carrying black colour bag. On being checked by the Officers, he was found to be carrying Rs.32,75,000/-. On being interrogated by the Officers, he stated that he has collected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocured gold. He contacted Mr. J. Suresh on his mobile number through whatsapp chat on 21.01.2019, he received O.K. response from Mr. J. Suresh. On 22.01.2019 in the morning Mr. T. Nandu came to his shop and delivered him said one kg. gold bars (500 gms. x 2) and collected Rs. 32,75,000/- from him. The said amount, which he received from Mr. J. Suresh have been seized by the DRI Officers from him. 6. Statement of this appellant was also recorded on 22.01.2019 before the SIO, Vijayawada wherein he affirmed contents of the panchnama drawn at his shop. Further stated that he knew Mr. T. Nandu who offered to sell gold procured from Chennai, also agreed that Mr. T. Nandu Mobile from Mobile No. 783393932 was in touch with him on whatsapp. He further affirmed the receipt of whatsapp message of Mr. T. Nandu to buy gold and thereafter purchased gold from Mr. T. Nandu totaling 1 kg. for Rs. 32,75,000/-. He further stated that he does not have any purchase documents for purchase made from Mr. T. Nandu. He further stated that out of 1 kg. gold purchased in the morning he has made some sales, out of which the balance 476.640 gms. have been found and seized by the officers. Both this appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that Mr. J. Suresh was aware that the sale proceeds of smuggled gold are liable for confiscation and accordingly he handed over the balance of Rs. 10 lakhs to the officer on 14.06.2019, being sale proceeds of smuggled gold. It further appeared that under Section 123 of the Customs Act where any goods is seized under the provisions of the Customs Act on the reasonable belief that it is smuggled, the burden of proving that it is not smuggled goods, lies on the person from whose possession the gold is seized or on the person who claims to be the owner of the goods so seized. 10. Accordingly, vide show cause notice dated 05.07.2019 it was proposed to confiscate the gold recovered and seized from this appellant alongwith proposal to confiscate the cash recovered and seized Rs. 14,44,000/-, with further proposal to impose penalty under Section 112. Under the same show cause Mr. T. Nandu was also required to show cause as to why not the cash recovered from Mr. T. Nandu of Rs. 32,75,000/- be confiscated under Section 121 of the Customs Act with proposal to impose penalty under Section 112 of the Act. 11. This appellant contested the show cause notice wherein he interalia stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 121 and consolidated penalty of Rs. 10 lakhs was imposed under Section 112(a) and 112(b)(i) of the Act. 15. Being aggrieved, this appellant preferred appeal before the Commissioner (Appeals) wherein the order of confiscation was confirmed and penalty under Section 112(a) and (b) was reduced to Rs.6 lakhs. Being aggrieved, the appellant have preferred appeal before this Tribunal. 16. Learned Counsel for the appellant urges that it is admitted fact that this appellant have purchased gold from Mr. T. Nandu at Vijayawada. Further admitted fact is that Mr. T. Nandu purchased gold from open market at Chennai for trading. Admittedly, there is no foreign marking on the gold. The only marking on the gold bars (500 x 2) is 999 . The gold of foreign origin normally consist either of 100 gms. biscuits shaped or tola bar (111.66 gms) or 1 kg. bar which contains the embossing and serial number given by the refiner. These markings reveal the nature of foreign origin of the gold. In the facts of the present case and in absence of any marking of foreign refinery nor the bars being of the weight, which is usually prepared by the gold refiner(s) located outside India. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal observed that Mr. Sanjiv Kumar has stated that he does not deal in purchase / sale of the gold. Thus, Revenue has failed to establish that gold was smuggled through Nepal. Further, in the circumstances that gold in question cannot be held as restricted goods and can be released on redemption fine and penalty. It was further observed that the foreign marking on the gold bars do not speak for itself and such evidence at best is heresay evidence. There was nothing to indicate that the foreign marking was actually done as it appeared outside India. Further, observed that no presumption can arise in regard to marking, unless there is evidence to show that those marking were made by a particular company located outside India in the ordinary course of business. It was held that benefit of presumption under Section 123 of the Act is not available to Revenue. Accordingly, setting aside the order of absolute confiscation, it was held that gold is to be released on payment of redemption fine and further penalty was reduced from Rs. 15 lakhs to Rs. 1 lakh on each of the appellant. Accordingly, ld. Counsel prays for allowing the appeal with consequential benefits. 17. Learned Author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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