The burden of proof in smuggling cases under Section 123 of the Customs Act shifts only upon reasonable belief of smuggled nature; inadequate evidence substantiates the legality of goods.

ORDER: [PER SHRI K. ANPAZHAKAN]

The present appeal has been filed by the Revenue against the Order-in-Appeal No. KOL/CUS/CCP/AKR/696/2021 dated 16.08.2021 passed by the Ld. Commissioner of Customs (Appeals), 3^rd Floor, Custom House, 15/1, Strand Road, Kolkata – 700 001.

2. The facts of the case are that on 18.09.2018, two gold bars were seized from Shri Anup Saha, an employee of Shri Tutun Chandra Roy (the respondent herein) before his shop, M/s. Gems & Jarwa House.

The specifications of the seized gold bars were shown as:

i) AS-1 - 156469, weighing 999.900 gms. ii) AS-2 – 151551, weighing 999.900 gms

2.1. The respondent, who is the proprietor of the said firm, admitted that, both the gold bars belonged to him. The shop premise of the Respondent was searched and his statement was recorded.

2.2. In his statement, the respondent inter alia deposed that one gold bar was purchased from M/s. Dutta Bullion Mart, Kolkata and another one was purchased by his cousin brother, namely, Shri Satyendra Chandra Roy, who died on 20.07.2018, which had been handed over to him against some loan, prior to his death.

3. Statement of Shri Aniruddha Dutta of M/s. Dutta Bullion Mart, was recorded, wherein he inter alia stated that both the said gold bars were purchased from M/s. J J House Private Limited. Accordingly, investigation was initiated against M/s. J J House Private Limited and statement of one Shri Siddhartha was recorded on 27.12.2018, wherein he submitted evidence that both the gold bar nos. 151551 and 156469 were purchased from M/s. Kundan Care Products Limited, Kolkata under tax invoices which were sold to M/s. Dutta Bullion Mart, against tax invoices. Shri Aniruddha Dutta of M/s. Dutta Bullion Mart, in his statement, also deposed that gold bar no. 156469 was sold to Shri Tutun Chandra Roy, proprietor of M/s. Gems and Jarwa House (the respondent herein) and the gold bar no. 151551 was sold to different customers in cut pieces, but no evidence to that effect was produced by him.

4. A Show Cause Notice dated 06.09.2019 was issued proposing confiscation of the seized gold totally weighing 1999.800 grams valued at Rs.61,79,382/- under Section 111 (b) and (d) of the Customs Act, 1962 , along with imposition of penalties under Sections 112 (a), 112(b) and 14AA of the Act, inter alia, on the respondent.

5. The case was adjudicated vide Order-in-Original No. 95/ADC(P)/CUS/WB/19-20 dated 05.03.2020. On adjudication, one gold bar bearing no. 156469 was ordered to be released by the adjudicating authority, but the gold bar bearing no. 151551, weighing 999.900 grams valued at Rs.30,89,691/- was ordered to be absolutely confiscated under Section 111 (b) and 111(d) of the Act; the ld. adjudicating authority also imposed a penalty of Rs.6,00,000/- on the respondent under Section 112 (a) and 112(b) of the Act.

5.1. The Respondent challenged the above adjudication order before the Ld. Commissioner of Customs (Appeals), Custom House, Kolkata, who passed the impugned order dated 16.08.2021 setting aside the Order-in-Original dated 05.03.2020 passed by the ld. adjudicating authority and also ordered for unconditional release of the gold bar bearing no. 151551 weighing 999.900 grams in favour of the Respondent; the penalty imposed on the Respondent under Section 112 of the Act was also dropped. While arriving at the said decision, the Ld. Commissioner (Appeals) has relied upon the decision in the case of Commissioner of Central Excise, Meerut-I Vs. Parmarth Iron Pvt Ltd [2010(260)E.L.T. 514(All.