TMI Blog2024 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in cash. They also gave the proper address and location of Mr Hari Gopal at Chennai. The appellant also explained the source of money for the purchase of gold - Revenue have rejected this contention on the basis of report received from Chennai Customs, that when their person went to enquire from Mr Hari Gopal, he could not locate him - the report received vide letter dated 17.08.2020 from the office of Commissioner of Customs is not a RUD and hence no reliance can be placed on the same. Accordingly, the appellant have discharged the onus under Section 123 of the Customs Act. All the allegations made by Revenue are by way of assumptions and presumptions which have no legs to stand. The impugned order set aside - appeal allowed. - HON BLE Mr. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) Ms Veda Samhitha PVS, Advocate for the Appellant Shri Pradeep Saxena Shri A Rangadham , Authorised Representatives for the Respondent ORDER [ ORDER PER : ANIL CHOUDHARY ] The issue in this appeal is whether the order of absolute confiscation of 2 bits of gold totally weighing 697 gms valued at Rs. 30,01,979/- under Section 111 (a), (b) and (d) of the Customs act is justified and further whether the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he knows that carrying gold and cash should not be done without proper documents. 4. Statement of appellant - Mr K S Basha was recorded who interalia stated that he had handed over cash of Rs. 30 lakhs to Mr Kaluva Hari Obulesu for purchase of gold from Mr Hari Gopal at Chennai. He also stated that he have earlier also on some occasions purchased gold from Mr Hari Gopal. He had initially asked Mr Hari Gopal to give him Bill for the purchases made but, he denied. He has no option but to purchase gold in cash to compete in the market. Out of his past savings from his goldsmith work and with some borrowings he started procuring re-melted gold since November 2019 and thereafter sell the same after conversion in jewellery. 5. It appeared to Revenue that the Appellant is dealing in smuggled gold as his employee was found to be carrying 697 gms of gold and they could not produce any documents regarding the possession of gold, Show Cause Notice dated 22.09.2020 was issued proposing to confiscate the 2 bits of gold (re-melted and transformed with spurious marking) weighing 697 gms totally valued at Rs. 30,01,979/- seized under panchnama dated 25.02.2020 proposing confiscation under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the whole proceedings are vitiated as there is no indication based on the 2 gold bits or on the statement of the person carrying, that the gold in question is of smuggled in nature. The Revenue had mis-led itself by imagination that certain persons in Chennai are engaged in the activity of illegal import of gold in violation of the provisions of the Customs Act 1962 without payment of customs duty and thereafter such persons intentionally remove the foreign markings by melting and put a mark to believe that gold is not of foreign origin. Such gold is sold at cheaper rates in the market and people like the appellant are purchasing the same and thereafter selling the same in order to make profits. It is further urged that the appellant due to the COVID pandemic during the relevant time could not make proper representation and or obtained confirmation from the seller of the gold Mr Hari Gopal of Chennai. In spite of proper address and details given of Mr Hari Gopal, Revenue did not make proper effort to contact him and vaguely stated alleging that the Revenue in the course of enquiry could not find Mr Hari Gopal at the address stated by the appellant. In support of his co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfiscated have no foreign markings, marked with the marking 999. It is further urged that the appellant have never said that the gold in question is re-melted gold out of smuggled gold, and the same is only imagination on the part of Revenue. It is further urged that the testing of the gold in question by the said approved valuer - Mr Gowri Shankar has been done by touch stone method, which is not the scientific method for testing purity. The approved test methods are XRF lab test or Fire assay method. Reliance is placed on the ruling of Kerala High Court in the case of Assistant Collector Vs Ismail where it have been held that Touch stone method is not a fully proved method to establish the purity of gold. Learned Counsel also relies on the following rulings: i) Madhukar Sonaba Bhagat Vs Commissioner of Customs (Prev.), West Bengal reported as [2019 (368) ELT 990 (Tri-Kolkata)] ii) Commissioner of Customs, Chennai-III Vs Shri Mohammed Ali Jinnah reported as [2023-TIOL-418-CESTAT-MAD] iii) Shanti Lal Mehta [1983 (14) ELT 1715 (SC)] iv) Commissioner of Customs, Excise Service Tax, Siliguri Vs Nand Kishore Somani reported in [2016 (337) ELT 10 (CAL-HC)] v) Ram Naresh Chaurasiya Vs Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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