TaxTMI 
TaxTMI 
2026 (1) TMI 1448
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....tor 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 Ja....
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....e Commissioner of Customs (Appeals), Kolkata has failed to appreciate the fact that the Burden of proof under Section 123 of the Customs Act, 1962 was not discharged by the respondent. The respondent stated on 03.10.2018 that he had purchased one piece of gold bar having sl. No. 156469 for his shop and in this context, he had submitted the relevant copy of tax Invoices No. 21197 dt. 18.09.2018 issued by M/s Dutta Bullion Mart. But in the case of the other Gold Bar (mark sl. no. 151551), he could not produce any valid documents and merely stated that it was procured by his brother Shri Satyendra Chandra Roy who has expired on 27.08.2018 and that before his death, he handed over the bar to him due to some loan amount which had remained due. Late Satyendra Chandra Roy did not possess any Trade Licence also. (ii) The appellate authority has failed to consider the fact that M/s. Dutta Bullion Mart, Korkata12, had purchased gold bar marked with "Kundan" no. 151551 from M/s. J.J. House Pvt. Ltd, Kolkata who had purchased the same from M/s. Kundan Care Products Ltd, Kolkata, and M/s. Dutta Bullion Mart sold the same to his different customers in several small cut pieces under seve....
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.... Dutta Bullion Mart to say that they have sold the same to different customers in several small cut pieces under several tax invoices but not in one kg. form. In this regard, the Ld. Counsel submits that Shri Tutun Chandra Roy (respondent) and his cousin brother, namely, Shri Satyendra Chandra Roy had purchased the said gold from M/s. Dutta Bullion Mart, which is a domestic purchase; that the Ld. Commissioner (Appeals), in the impugned order, has accepted the above facts and given a categorical finding that the gold bars in question cannot be said to be smuggled ones and that in the absence of any evidence to establish the smuggled character of the said bars, the same cannot be held liable for confiscation. Accordingly, the Ld. Counsel for the respondent contends that the Ld. Commissioner (Appeals) has rightly set aside the Order-in-Original dated 04.03.2020 confiscating the gold in question. 7.1. The Ld. Counsel for the respondent also points out that the Department has primarily relied on the statement recorded from Shri Aniruddha Dutta of M/s. Dutta Bullion Mart, wherein he has stated that the gold bar bearing no. 151551 was sold in cut pieces to different customers; it has a....
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....respondent has purchased the same from domestic sources. We also find that the Department has not produced any evidence to substantiate its allegation that the said gold bar no. 151551 is of foreign origin. Therefore, in the absence of any corroborative evidence by the Revenue to establish the smuggled nature of the gold bar in question, we hold that the gold in question cannot be held liable for confiscation. 10. From the impugned order, we find that the Ld. Commissioner (Appeals) has recorded the following categorical findings while setting aside the order of confiscation of the gold bar under dispute: - "13. On perusal of the OIO it is found that the lower authority observed that appellant had purchased one piece of gold bar having serial no. 156469 for his shop and in this context, he had submitted the relevant copy of the Tax Invoice No. 21197 dated 18.09.2018 issued by M/s Dutta Bullion Mart along with his Customer Account Ledger Report (Bank Statement) for the period from 01.09.2018 to 30.09.2018 issued by Oriental Bank of Commerce, Bowbazar Branch indicating the payment made by M/s Gems & Jarwa House in favour of M/s Dutta Bullion Mart through RTGS. Accordingly.....
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....J. House Pvt. Ltd. Kolkata on 14.08.2018 under voucher No. JJ03233 and sold to different customers in small cut piece. 16. Further I find that the entire case of Department is based solely on the statement of Sri Aniruddha Dutta, prop. of M/s. Dutta Bullion Mart wherein he stated that the gold bar marked with "Kundan No. 151551 has been purchased from M/s J.J. House Pvt. Ltd. Kolkata on 14.08.2018 under voucher No. JJ03233 and sold to different customers in small cut piece. However, no verification was done by department to substantiate contents of this statement. Department should have investigated further to ascertain to whom the cut pieces of the said gold bar were sold and statement of those customers should also have been recorded before culmination of the investigation. No documentary evidences is placed on record in form of tax invoice etc. for sell of cut pieces of the said gold bar No. 151551 which should have been sought from Sri Aniruddha Dutta, prop. of M/s. Dutta Bullion Mart during investigation but no such exercise was carried out by the department. 17. Further it is clear that the gold bar bearing no. 151551 was legally sold by M/s Kundan Care Prod....