TMI Blog2023 (9) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the service of SCN within the stipulated time. It is found from the facts and circumstances and the evidence led by the Appellant (owner of goods) that he has discharged the onus under Sec 123 of the Act by leading sufficient documentary evidence like (i) copy of challan, (ii) copy of tax invoice, (iii) copy of stock ledger and (iv) copy of bank statement. The Bank statement further certifies that the payment has been made for the purchase of the gold in question through banking channel. Further the tax invoice reflects that GST has been deposited on the transaction - the Appellant has discharged the onus under Sec 123 of the Act - allegations of Revenue are based on assumptions and presumptions as the evidence led by the Appellants have not been found to be incorrect or false. The whole proceedings are vitiated as the SCN has not been issued and served within six months as required under Sec 124(a) read with Sec 110(2) of the Act. The Revenue are directed to return the seized/confiscated goods forthwith to the Appellant, Mr. Neeraj Aggarwal - the Impugned Orders are set aside - appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Mr. Vineet Kumar S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents regarding the procurement of seized gold bars of foreign origin. But it is not alleged anywhere in the SCN, that the seized gold bars were smuggled. The SCN also did not speak about the origin of seized gold bars. In nutshell, the entire case of the department is based on the statement of appellant - Babu Ram, which was retracted by the appellant on very first opportunity. 6. The Appellant s Counsel assailed the entire proceedings on the following grounds: 6.1 The appellant (Neeraj Aggarwal) had purchased the gold in question from Shivi Agarwal (another jeweler-trader) through invoice No 98 dated 05/10/2018 and payment of the same was also made through the banking Channel . The said Invoice is duly reflected on the appellant s GST records. Mr Neeraj Agarwal the owner of seized gold, was sending the gold through Mr Babu Ram (the other appellant) to M/s K.K Gold of Coimbatore for making designer jewelry on job work basis, through challan no 5 dated 30/01/2018. 6.2 The Appellants submits that the alleged inscriptions Valcambi Suisse 1 kg. gold , 99.50% CHI essayeur foundeur on another 3 bars, was the duplicate one because the purity of gold is not equal to 99.99 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 123 of the Customs Act are not attracted. 6.5. That at the time of filing the bail application, the appellant had produced the (i) challan, (ii) invoice, (iii) stock book to establish the licit possession of the gold, at the first available opportunity before the Sessions Court. The ld. adjudicating authority as well as Commissioner Appeals conveniently ignored these documents. For this the appellant relies on the following judgments in support of his contention: i) Krishnakumar Dhandhania [2007 (219) E.L.T. 736 (Tri.- Kol.)] ii) CC v. Golak Chandra Kamila [2006 (205) E.L.T. 665] iii) S.K. Chains v. CC, Mumbai [2001 (127) E.L.T. 415] 6.6. The only evidence that the department has against the appellant is the statement of Babu Ram which was given on 31/01/2018, wherein he had admitted that the goods under seizure are smuggled, otherwise there is no evidence available with the department to allege that seized gold was of foreign origin or smuggled gold. However, the co appellant (Neeraj Aggarwal) immediately produced the evidence by way of challan invoice, to show that he had procured the same from another trader on payment of GST. It is a well-settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the Department that the gold is smuggled. The Department has completely failed to go into the root of the matter as to how the goods were smuggled in nature, nor is the allegation based on any evidence to this effect, whereas the appellant - Mr Neeraj Agarwal from the very first day contended that the said gold was sent to M/s K.K Gold Coimbatore through Challan No 05 dated 30/01/2018. The appellant further informed that the said gold was purchased through Invoice No 95 dated 05/01/2018. In such circumstances, by no stretch of the imagination can the goods be termed as smuggled. The appellant has submitted sufficient documentary evidence in support of the licit acquisition of seized gold and discharged the burden under Section 123 of Customs Act, 1962. Therefore, the impugned order needs to be set aside. The appellant had submitted the copy of Challan along with the letter addressed to the M/s K.K Gold Coimbatore, regarding the transfer of gold for jewelry making, at the time of filing the bail application this fact was mentioned in the bail order itself, thus it cannot be termed as an afterthought. 6.10. That the entire case has been made by the department based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms (Preventive), New Customs House, New Delhi, informing the date fixed for PH on 20.11.2018. Immediately Mr. Neeraj Aggarwal sent a letter dated 31.10.2018 informing the Adjudicating Authority that no SCN has been served or received and requested the Authority to provide him copy of SCN along with the relied upon documents. 6.14. In response, the Adjudicating Authority provided copy of SCN along with RUDs vide letter dated 28.11.2018. From the perusal of the SCN it appears that the said SCN was not signed by the issuing authority and further no date of issuance is mentioned. Accordingly, SCN has not been served within the stipulated period as required under Sec 124(a) of the Act. Further, Sec 110(2) provides that wherein goods are seized under Sub-Sec (1) and no notice in respect thereof is given under Sec 124(a) within six months of the date of seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Accordingly, learned Counsel prayed for allowing the Appeal with consequential benefits. 7. Learned AR for Revenue, Mr. Mahesh Bhardwaj, relies on the Impugned Order. 8. Heard the parties in detail and perused the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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