TaxTMI 
TaxTMI 
2018 (4) TMI 237
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....missioner (A) has rejected the appeal of the appellants and upheld the Order-in-Original. Since the Commissioner (A) has passed a common order as the facts are common in both the appeals, therefore, both the appeals are being disposed of by this common order. 2. For the sake of convenience, the facts of appeal No.C/20859/2017 are taken. Briefly the facts of the case are that the DRI Mangalore received a written complaint that as a result of certain property deal, huge amount of Indian currency including fake Indian currency notes were secreted in the residential premises of Mr. Bhakta. The officials of DRI Mangalore searched the residence of Mr. Bhakta and recovered two gold bars of foreign origin totally weighting 928.230 grams of 24....
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....eard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the law in proper perspective. He further submitted that the Commissioner (A) has wrongly held that gold in question which was handed over to Shri K. Viswanath Bhakta, by the appellant meant for his son Shri Lakshminarayan, who is the Son-in-Law of Shri K. Viswanath Bhakta belong to the family and not purchased out of the sale proceeds of the property sold by the appellant. He further submitted that the appellant is an aged person and in the recent past has not travelled to foreign country and therefore, the question of smuggling does ....
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....NERY 995.0 and 995.0 MELTER ASSAYER 0082414 . He further submitted that Shri B. Rathnakar of Rathan Jewellers, Mangalore has certified in his report that the said gold bars were of foreign origin and were of 24 carat purity. The learned AR further submitted that both the appellants have made contradictory statements regarding the source of these gold bars. Initially, Mr. Bhakta in his statement under Section 108 of the Customs Act, 1962, has stated that the said gold was purchased from Mr. Surendra Kamath owner of Popular Jewellers, Mangalore; but in the grounds of appeal, it has been stated that the said gold was purchased at Mumbai. The Commissioner (A) has observed that whether these foreign origin gold bars were purchased at Mangalore o....
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....y with Mr. Bhakta. But it is a fact that no document has been produced by both the appellants to prove that the said gold were procured with licit documents and that proper customs duty was paid on it. Further, it is also not disputed that the said gold bars were of foreign origin and bearing markings RAND REFINERY 995.0 and 995.0 MELTER ASSAYER 0082414 . Therefore, since the appellants have failed to justify the licit procurement of the gold bars, consequently, the seized gold cannot be considered as a bona fide baggage. Further, I find that the Commissioner (A) has also relied upon the decision of Uttamchand Sawal Chand Jain vs. UOI: 2013 (42) ELT 11, where it is held that the Baggage Declaration Form is not filled in respect of the goods....
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.... me, to press home the point, that the appellant had licit possession of the silver bars. The only ground of the appellant is that these silver bars were having serial number affixed by indigenous refinery and no foreign marking were found on the silver bars is unsubstantiated by any evidence, that these very silver bars (as seized) were refined by the said indigenous refinery. In the absence of any such evidence the burden of proof under Section 123 of the Customs Act, 1962 has clearly not been discharged by the appellant, from whose possession silver bars were recovered. The appellant's ground of appeal that it was for the department to prove that the silver recovered was imported or smuggled in misconceived in the absence of any evid....