TMI Blog2023 (7) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... In that circumstances, it is to be seen that can it be alleged that 3327.40 gms of gold is of foreign origin. Admittedly in the case in hand it is a case of town seizure and gold in question was not bearing any marking of foreign origin. Moreover, purity of the gold is also less than the purity of foreign origin gold. In that circumstances, the provision of section 123 of the Customs Act, 1962 are not attracted to allege that the 3327.40 gms of gold in question is smuggled one - Moreover, the statements recorded during the course of investigation have been retracted by the appellants during the course of adjudication by way of cross-examination, but no procedure has been followed in terms of section 138B of the Customs Act, 1962 to test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 2.45 p.m. at Guwahati railway station and recovered 5837 gms. of gold under presumption that the same was primarily gold of foreign origin and seized the same under Customs Act, 1962. Statements of the appellants were recorded. DRI recorded the statements of all the appellants who produced the voucher with regard to custody of the said gold with them. But a case was made out against the appellants that the said gold was of foreign origin smuggled clandestinely and brought in India from Myanmar. Later on, the statement of one of the appellants namely Shri Anil Kumar Jain and his son Shri Sahib Jain was recorded who confirmed that that they have issued the voucher No.06/2004 dated 22.09.2014 for 3327.40 gms of gold to M/s. New Coin Make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. As the sample of the gold was drawn and same was tested and as per the result the purity of the gold was 995.0 only, which is not of gold of foreign origin. It is the contention of the appellants that gold was not seized at port or airport. It is only a town seizure and having no mark of foreign origin and purity of the gold is also not in conformity as the gold of foreign origin therefore it cannot be believed that the gold in question of foreign origin and have brought in India through illicit means from Myanmar. It is only assumption and presumption by the DRI officers. Moreover, the statements recorded during the course of investigation have not been tested by the adjudicating authority in terms of section 138 (b) of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of their claim. Therefore, the impugned order is to be upheld. 5. Heard the parties, considered the submissions. 6. On careful considerations and perusal of records placed before us the only issue before us is that whether 3327.40 gms of gold can be absolutely confiscated without having any iota of evidence that the gold being smuggled in nature. In fact, it is a case of town seizure and the appellants were carrying job-work voucher with them in support of their claim. Moreover, the test report also certified that the purity of the gold is not up to the mark and the gold which is seized having no foreign marking to prove its foreign origin. 7. In that circumstances, it is to be seen that can it be alleged that 3327.40 gms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not liable to confiscation, as admittedly it is the case of town seizure. I further hold that the provisions of Section 123 of the Customs Act are not attracted. Accordingly, I set aside the order of confiscation with respect to these four gold bars and the cut piece and further order that the same is to be released to the person from whom they were recovered - Mr. Sanjay Soni. The penalty imposed under Section 112(b) is reduced to Rs. 5,00,000/- (five lakhs). 31. Under the facts and circumstances, I find that Revenue has not been able to substantiate the charge of smuggling save and accept the statement under Section 108 recorded from Mr. Sanjay Soni. Such statement also loses its evidentiary value as Revenue has failed to exami ..... X X X X Extracts X X X X X X X X Extracts X X X X
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