Case Law Details

Case Name : Commissioner of Customs Vs Lalit Krishna Agrawal (CESTAT Kolkata)
Appeal Number : Customs Appeal No. 75499 of 2022
Date of Judgement/Order : 08/11/2023
Related Assessment Year :

Commissioner of Customs Vs Lalit Krishna Agrawal (CESTAT Kolkata)

CESTAT Kolkata held that confiscation of boondi silver and silver jewellary alleging it to be smuggled goods without any evidence to allege that these are third country origin is unsustainable in law.

Facts- During search 79.58 kgs. of Silver Jewellary, 50 Kgs. of Silver Boondi, Indian Currency amounting to Rs.79,00,000/- and some documents were recovered. On demand of value paper in support of legal importation of the third country ornaments, Silver Boondi and Silver Articles, Cash Books, Stock Register and other relevant documents, the said Noticee could not produce the same. Further, the said Noticee also could not produce documents in support of possession of huge amount of cash. The officer, after thorough examination and in absence of any satisfactory reply/documents and after recovery of 3rd country ornaments, Silver Boondi and Cash (in INR) effected the seizure of recovered goods of third country along with the recovered Indian Currency of Rs.79,00,000/- in presence of the independent witnesses and the said Noticee under proper Panchnama under Unit Case No.04/2019-20 dated 22.10.2019. The recovered Indian Currency of Rs.79,00,000/- was also seized u/s. 110 of the Customs Act, 1962 on reasonable belief that the huge Indian Currency is the sale proceed of the smuggled goods and illegal trade of the said Noticee.

Thereafter, a show-cause notice dated 21.07.2020 was issued to the respondent for absolute confiscation of Silver Jewellary, Silver Boondi & Indian Currency and to impose penalty on the respondent.

The Adjudication took place and the goods recovered was absolutely confiscated and the Indian Currency was also confiscated and penalty of Rs.20.00 lakhs was also imposed. Commissioner (Appeals) set aside the adjudication order and held that the seized goods are not liable for confiscation and the Indian Currency is not liable for confiscation and penalty imposed on the respondent was also set aside. Being aggrieved, revenue has preferred the present appeal.

Conclusion- Held that boondi silver and silver jewellary were recovered from the shop of the respondent. So, the question arises that in the absence of any seizure of Port or Airport or not having any foreign markings on the goods seized from the respondent, how the officers came to the conclusion that the goods are third country origin goods. Therefore, first, onus on the Revenue is to make a reasonable belief that the goods are of third country. Admittedly, no such evidence has been produced by the Revenue to allege that to make a reasonable belief, the goods are of third country origin. In the absence of that, the goods in question cannot be confiscated. Furthermore, the confiscation of Indian Currency recovered from the respondent was not proved by the Revenue that the same is sale proceed of the goods of third country origin. In that circumstances, the Indian Currency cannot be seized or confiscated.

FULL TEXT OF THE CESTAT KOLKATA ORDER

The Revenue is in appeal against the impugned order.

2. The facts of the case are that acting on an information received on 21.10.2019, two teams of officers of Customs (P) Hqrs., Patna, proceeded to execute the information to recover the contraband goods from the house and Gaddi (Business premises) of Shri Lalit Krishna Agrawal alias Bablu Jee, situated at Lalbagh, near IOC Petrol Pump, Darbhanga and Bara Bazar, West of Darbhanga Tower, Darbhanga-846004 respectively. The officers of Customs (P) Division, Muzaffarpur were also called for assistance in the operation. The searches were conducted in both the premises under proper Search Authorization issued by the competent authority and in presence of independent witnesses.

2.1 Out of two teams formed for search, one team searched the Gaddi (Business premises) of Shri Lalit Krishna Agrawal i.e. M/s Lalit Krishna Agrawal at Bara Bazar, Darbhanga-846004 and other team searched the house of Shri Lalit Krishna Agrawal, near Petrol Pump, Lalbagh, Darbhanga in presence of independent witnesses and lady officers. After completion of the search at house of Shri Lalit Krishna Agrawal, the team joined the other team in search operation at the Gaddi of M/s Lalit Krishna Agrawal at Bara Bazar, Darbhanga-846004. No contraband goods was recovered from the House of Shri Lalit Krishna Agrawal.

2.2 During search at the Gaddi (Business premises) of Shri Lalit Krishna Agrawal i.e. M/s Lalit Krishna Agrawal at Bara Bazar, Darbhanga-846004, 79.58 kgs. of Silver Jewellary, 50 Kgs. of Silver Boondi, Indian Currency amounting to Rs.79,00,000/- and some documents were recovered. Samples of the Silver Boondi were drawn from each packet and kept in plastic pouches and sealed them in the envelopes for testing purpose. The envelopes were duly sealed in the presence of the independent witnesses and the said notice and a token of proof of the same, they also made their signature on sealed envelope. The Indian Currency was counted and found to be INR 79,00,000. On demand of value paper in support of legal importation of the third country ornaments, Silver Boondi and Silver Articles, Cash Books, Stock Register and other relevant documents, the said Noticee could not produce the same. Further, the said Noticee also could not produce documents in support of possession of huge amount of cash. The officer, after thorough examination and in absence of any satisfactory reply/documents and after recovery of 3rd country ornaments, Silver Boondi and Cash (in INR) effected the seizure of recovered goods of third country along with the recovered Indian Currency of Rs.79,00,000/- in presence of the independent witnesses and the said Noticee under proper Panchnama under Unit Case No.04/2019-20 dated 22.10.2019. The recovered Indian Currency of Rs.79,00,000/- was also seized under Section 110 of the Customs Act, 1962 on reasonable belief that the huge Indian Currency is the sale proceed of the smuggled goods and illegal trade of the said Noticee.

2.3 Thereafter, a show-cause notice dated 21.07.2020 was issued to the respondent for absolute confiscation of Silver Jewellary, Silver Boondi & Indian Currency and to impose penalty on the respondent.

2.4 The Adjudication took place and the goods recovered was absolutely confiscated and the Indian Currency was also confiscated and penalty of Rs.20.00 lakhs was also imposed.

2.5 Against the said order, the Respondent filed an appeal before the ld. Commissioner (Appeals), who set aside the adjudication order and held that the seized goods are not liable for confiscation and the Indian Currency is not liable for confiscation and penalty imposed on the respondent was also set aside.

2.6 Against the said order, the Revenue is before us.

3. The ld. A.R. for the Revenue submits that in this case, Silver Jewellary, Silver Boondi recovered from the respondent were of third country origin and no such documents for importation of the said goods were produced by the respondent. In that circumstances, the silver ornaments and Silver Boondi is liable to be confiscation. Therefore, the impugned order is to be set aside.

4. Heard the ld. A. R. for the Revenue and perused the records.

5. We find that the search made on the basis of that respondent is dealing with the contraband goods and during the course of investigation, no contraband goods were recovered. The respondent being a trader in silver ornaments/silver boondi, was searched and 79.58 kgs. of Silver Jewellary, 50 Kgs. of Silver Boondi, Indian Currency amounting to Rs.79,00,000/- were recovered. These were presumed by the Revenue and these are the third country origin, but no such evidence has been produced by the Revenue to allege that these are third country origin.

6. In fact, during the course of investigation, it is a fact on record that boondi silver and silver jewellary were recovered from the shop of the respondent. So, the question arises that in the absence of any seizure of Port or Airport or not having any foreign markings on the goods seized from the respondent, how the officers came to the conclusion that the goods are third country origin goods. Therefore, first, onus on the Revenue is to make a reasonable belief that the goods are of third country. Admittedly, no such evidence has been produced by the Revenue to allege that to make a reasonable belief, the goods are of third country origin. In the absence of that, the goods in question cannot be confiscated.

7.Furthermore, the confiscation of Indian Currency recovered from the respondent was not proved by the Revenue that the same is sale proceed of the goods of third country origin. In that circumstances, the Indian Currency cannot be seized or confiscated.

8. The ld. Commissioner (Appeals) has also dealt with this issue in detail and has observed as under :

his issue in detail and has observed  as under

goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.

15.1 Section 110 opens with the words “if the Proper officer has reason to believe that any goods arc liable to confiscation under this Act, he may seize such goods”. What is the meaning of “reasonable belief”? Did the officer entertain reasonable belief in the facts and the circumstances of this case? This is the fundamental question to be examined. The preliminary requirement of Section 110 is that the officer seizing should entertain a reasonable belief that the goods seized were smuggled. The seizing officer either by his own evidence or other materials placed before the adjudicating authority, has to prove to its satisfaction that there was ground for him to reasonably believe that the goods were smuggled goods, that is to say that the goods were imported into the country and imported at a time and place when they were restricted or prohibited from being imported.

15.2 In the case of Babulal Amthalal v. Collector of Customs, Calcutta (AIR 1957 S.C. 877), the Hon”ble Supreme Court considered the questions of reasonable belief that the goods were smuggled goods as prescribed by Section 178-A (1) of the Sea Customs Act 1878 equally applied in Section 110(1) of the Customs Act, 1962 and it was held as follows:-

“No doubt the content and Import of the section are very wide. It applies not only to the actual smuggler from whose possession the goods are seized but also to those who came into possession of the goods after having purchased the same after the same has passed through many hands or agencies. For example, if the Customs authorities have a reasonable belief that certain goods in the possession of an innocent party are smuggled goods and the same is seized under the provisions of this Act, then the person from whose possession the goods were seized, however innocent he may be, has to prove that the goods are not smuggled articles. This is no doubt a very heavy and onerous duty cast on an innocent possessor who for aught one knows, may have bona fide paid adequate consideration for the purchase of the articles without knowing that the same has been smuggled. The only pre-requisite for the application of the section is the subjectivity of the Customs Officer in having a reasonable belief that the goods are smuggled.”

15.3 I further observe that the Hon”ble High Court of Patna in C.W.J. Case No.6563 of 2019 in the case of M/s Ramesh Kumar Baid and Sons 86 Other Versus U01 through Commissioner of Customs (Prey), Patna 86 Others has answered the called upon question that what is the meaning of the expression ‘reason to believe’ n,4 ‘liable to confiscation’ under Section 110 of the Customs Act, 1962 and has /Sowed the Appeal. While deciding the case in favour of the Appellant, the Hon”ble High Court, Patna has relied upon different case laws as detailed hereunder and many more.

i. Sheo Nath Singh V. CIT, (1972) 3 SCC 234: – The reason to believe can’t be basis on more suspicion, gossip or rumour though belief on an honest basis and on reasonable grounds and the officer may act on direct or circumstantial evidence. If the officer were to act without any material or irrelevant, extraneous material, it would constitute an act without jurisdiction. 

ii. Calcutta Discount Co. Ltd. Versus Income Tax Officer, Companies District I, Calcutta and another, AIR 1961 SC 372: – The expression “reason to believe postulates belief and the existence of reasons for that belief. The belief must be held in good faith; it can’t be merely pretence. The expression does not mean a purely subjective satisfaction of the Income Tax Officer; the forum of decision as to the existence of reasons and the belief is not in the mind of the Income Tax Officer.

It Contemplates existence of reasons on which the belief is founded, and not merely a belief in the existence of reasons inducing the belief in other words, the Income Tax Officer must on information at his disposal believe that income has been under-assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief be it said, may not be based on mere suspicion: it must be founded upon information.” 

iii. Tata Chemicals limited Versus Commissioner of Customs (Preventive), Jamnagar, (2015) 11 SCC 628: – The Court explains meaning of “reason to believe.” by opining it to be not the subjective satisfaction of the , officer concerned for “such power given to the officer concerned is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law” and that such belief must be that of an honest and reasonable person based upon reasonable grounds.

iv. Humka v. The state of Rajasthan, AIR 1965 SC 476: – The burden of proof postulated upon the private party is based on the existence of the satisfaction of ‘reason to believe’.

v. Aslam Mohammad Merchant Versus Competent Authority and others, (2008) 14 SCC186: – It is now a trite law that whenever a statute provide for ‘reason to believe’, either the reasons should appear on the face of the notice or they must be available on the materials which had been placed before him.”

vi. Bar Council of Maharashtra versus M. V. Dabholkar and others, (1976) 2 SCC 291:- Reason to believe’ cannot be converted into a formalized procedural roadblock, it being essentially a barrier against frivolous

15.4. I turner observe that the Hon’ble CESTAT Allahabad Bench in the case Shri Lokesh Kumar Choudhary vs. Commissioner of Customs, Lucknow has allowed the appeals filed by the private parties and appeal of the Revenue has been rejected relying on many previous orders/ judgments. The CESTAT has also relied on the case of Ram Naresh Chaurasiya vs. Commissioner of Customs (Prey.), Patna, reported in [2019 (365) ELT 940 (Tri-Kolkata)] wherein it has been held that there being no foreign marking and no investigations made by the department producing evidence of smuggled nature of the gold, the presumption under section 123 of Customs Act, 1962 is not invocable.

15.5. It is also observed that while rejecting the appeal of the department in the case of Commissioner of Customs (Preventive) vs. Prabhash Kumar Jalan; the Hon’ble CESTAT, Kolkata relies upon the case of Shanti Lal Mehta- 1983 (14) E.L.T 1715 (S.C) by inscribing that it was held by the Hon’ble Supreme Court that “the reasonable belief is a prerequisite condition of the power of seizure that the statute confers on the officer. The reasonable belief as required by Sec. 110 refers .to the point of time when the goods in question are seized and not to a stage subsequent to the act of seizure”. In the said case, the apex court also held that in order to attract the provisions of Sec 123 it is essential that the goods must be smuggled goods. The term ‘smuggled’ means goods of foreign origin and imported from abroad. There must be something suggesting their foreign origin and their recent importation from abroad. It cannot, from unaccounted goods, be inferred that they are smuggled goods, for they may be stolen goods.

15.6. In light of above observations as well as on the judgments and orders of the Apex Court/ High Courts/ Tribunals, I find that the only safeguard that is available to a person against indiscriminate seizure, which is a serious intrusion into the fundamental and legal rights of individual, has been provided in the expression “reason to believe”. What is the law on this point has been repeatedly dealt with and elucidated by various High Courts and the Apex Court in the judgments. It is settled law that “the power of seizure cannot be used as a roving and fishing enquiry”. Reason to believe is not the same as “reason to suspect” because if such an interpretation was given, then no citizen would be safe and property of any person could be seized. “Reason to believe” must exist prior to seizure and it is not a thing that is acquired after the seizure i.e. when the explanation of the person is not found to be correct.

15.7 Such views have been taken by the Courts in (i) Angou Golmei vs. Smti Vizovolie Chakhsang and another reported in 1994(1)PLJR 800; (ii) Bawa Gopal as Bedi & Sons and others vs. Union of India and others, reported in AIR 1982, atna 152; (iii) Yogendra Prasad vs. The Union of India, 2004(4)PLJR 675 and (iv) R.G Holdings Pvt. Ltd. Vs. State of Bihar, reported in 2008(2)PLJR 538).

15.8 The question of ‘reasonable belief’ was again considered by the Supreme Court In Pukhraj v. D.R. Kohli, [AIR 1962 S.C. 1559 = 1983 E.L.T. 1360] & in the case Collector of Customs, Madras v. N. Sampathu Chetty [AIR 1962 S.C. 316], In the case of Pukhraj v. D.R. Kohli, it was contended that the question whether there

In rejecting this contention the Supreme Court held

silver in shop and business premises cannot provide a basis to have presumption about its possession being illegal in nature. It is noticed that the Respondent department has mainly relied upon the statement of appellant wherein he has confessed that the silver boondi was purchased without payment of import duty from traders of Bihar and Mumbai and were of foreign origin. But I do not find any corroborative evidence regarding purchase of the said item such as mode of payment to the traders, identity of seller, documents related to purchase of the aforesaid item etc. Further there is no foreign marking on the aforesaid item and there is nothing on record regarding purity of the silver jewellery. It is observed that the appellant has vehemently denied the aforesaid allegation in the instant proceeding and has submitted copy of the invoice no. TX/19-154 dated 17.10.2019 of M/S Bharat Jewellers, Patna and invoice no. 2203 dated 05.10.2019 of M/S Alankar Jewellers, Darbhanga alongwith ledger evidencing the source of procurement of the silver bar from which silver boondi and silver jewellery were made. It is also observed that the partner of M/S Alankar Jewellers, Darbhanga and proprietor of M/S Bharat Jewellers, Patna has also admitted to have sold silver bar to the appellant.

16.2 I find that the appellant has shown stock of silver ornaments and melted silver in their Balance Sheet submitted for the impugned period. There is no evidence regarding any discrepancy in stock of the silver found by the Respondent department incourse of search of the premises of the appellant. Further excess stock of silver other than purchase has not been proved by the department. Accordingly there is no evidence of purchase of smuggled silver as the items of silver have been duly accounted for in the stock by the appellant. It is also noticed that the appellant has submitted copy of inventory dated 28.06.2013 drawn by the Income Tax Department regarding declaration of silver. As per the aforesaid declaration it is observed that there is evidence of bulk purchase of the aforesaid item in the past also. As regards stock of silver boondi, I find that it is the general practice of manufacturing silver boondi from silver bar for making silver jewellery of particular choice by the sellers of the aforesaid item as per the demand of the customers. In some cases the silver jewellery is directly manufactured from silver bar and it depends upon the requirement and choice of the jeweller manufacturer. The Respondent department has not submitted any evidence proving that the purchased silver is not used in manufacturing of silver boondi. I find force in the contention of the appellant that silver boondi is made from silver bar which is further used in making of silver jewellery. Further I do not find any evidence regarding any investigation being conducted by the department regarding source of purchase of the silver boondi and silver jewellery. There is also no evidence on record proving that silver boondi is smuggled from Nepal and there is nothing ..,corroborative evidence on record that the aforesaid items were of foreign origin and mugged into India in the instant case. Therefore the Respondent department has t discharged the burden of proof under Section 123 of the Act.

16.3 It is also noticed that the purity of silver ornaments had not been disclosed by the investigation authority in the SCN. None of the witnesses had testified that

the burden of proof under Section 123 of the Act

the burden of proving is also shifted on the person in case he claims to be the owner of the goods so seized. It would thus appear that if the goods are seized in the reasonable belief that they are smuggled goods, the, burden of proving that they are not smuggled goods rests on the person specified in the said provision. Reliance placed on the judgment in Kewal Krishan V. State of Punjab 1993 (67) E.L.T. 17 (S.C.). The Apex Court has observed as follows:-

“When goods are seized by the Customs Officer in the reasonable belief that they are smuggled goods then under S. 178A of the Sea Customs Act the onus of proving that they are not smuggled goods, that is, not of foreign origin on which duty is not paid, is on the person from whose possession the goods are seized. The onus is not on the prosecution to show that the goods are not of Indian origin.’

17.2 The Apex Court in Union of India v. Shyamsunder, 1994 (74) E.L.T. 197 (S.C.) = AIR 1994 S.C. 485. has held that the persons from whom the contraband articles were seized had not satisfactorily discharged the burden of proof cast on them as required by Section 123 of the Customs Act that they are not smuggled. From the plain language of Section 123 and from the decisions of the Apex Court it is clear that if the goods are seized on a reasonable belief that they are smuggled goods, the burden of proof is shifted on the persons named in Section 123 to prove to the contrary.

17.3 In case of Ram Naresh Chaurasiya Versus Commissioner of Customs (Prey.), Patna reported in 2019 (365) E.L.T. 940 (Tri. – Kolkata) held that-

“18. I find that there is no dispute with the said two Gold Bars recovered from the residential premises owned by the appellant’s father and the appellant and his brother Shri Harish Kumar Chaurasiya were residing along with their respective families in the said premises. There is no dispute that the said gold bars did not have any foreign marking. No further investigation has been made by the Department thereafter. Thus, the department could not adduce any evidence whatsoever to prove that the said two gold bars were smuggled in the two countries. Therefore, the presumption regarding the smuggled nature of seized gold under Section 123 of the Customs Act, is not invocable”

17.4 Again, in case of Commissioner of Customs (Prey.), Shillong versus Manisha Devi Jain (2019 (370) E.L.T. 401 (Tri. – Kolkata)] held

“5. On perusal of records, I find that the Indian Origin remolten gold/ gold ornaments could not be legally confiscated as the possession of the same is not prohibited under any provision of law. In the present case, the seized gold do not bear foreign markings and do not have uniform weight/purity. It is observed that the respondent belongs to a respectable and a well to do family. She is also a regular Income Tax assessee. The seized gold rods were made from the gold ornaments belonging to her.

6. In view of the above observations and settled legal propositions, every piece of gold possessed by a person in India cannot be considered to be of smuggled nature and that the possessor of such gold cannot be made to discharge the onus u/ s 123 of the Customs Act, 1962.”

Again, in case of Commissioner of Customs (Prey.), Shillong

title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff title.”

18.1 Therefore, the principle laid down in R.V.E. Venkatachala Gounder (supra) is applicable to adjudicating proceedings under the Act. By virtue of Section 123 of the Act, the burden to prove that the silver is not smuggled is on the person found in possession of the silver. Thereafter, the onus keeps shifting. It is noticed that the appellant has discharged the primary onus by showing that the aforesaid items were in their stock which is supported by the purchase documents of the aforesaid goods. Thus, it is observed that the Appellant has shown the source of the aforesaid items and onus shifts upon the Revenue in such case. In the absence of the Revenue discharging its onus, it is observed that the appellant has discharged the burden of proof imposed upon them under Section 123 of the Act.

18.2 Proceedings under Customs Act being penal in nature, burden is always on the department to establish the case as per 1990 (48) E.L.T. 210 (Bom.) in the case of Santosh Gupta v. U01. In order to attract Section 123 of Customs Act, the seized goods must be smuggled goods. The term “smuggled” means goods of foreign origin and imported from abroad. There must be something suggesting their foreign origin and their recent importation from abroad. Therefore confiscation of goods under Section 111 of the Customs Act, 1962 is not sustainable when there is no iota of evidence that seized items of silver boondi and silver jewellery were of foreign origin or smuggled into India. Suspicion/presumption howsoever strong cannot take the place of evidence.

18.3 Though the adjudicating authority has highlighted the grounds of reasonable belief; but I find that the department fails to place the grounds of reasonable belief at the time of seizure by any positive evidence. Subsequent investigation has also not established that the silver items were smuggled and therefore the provision of Sec 123 of the Customs Act is not invocable. A perusal of Section 123 of the Customs Act shows that where any goods, namely, gold, watches or any other class of goods which the Central Government may by notification in the official gazette specify, are seized under the Act in the reasonable belief that the said goods are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the seizure is made or if any person claims ownership of the said goods, the burden of proving is also shifted on the person in case he claims to be the owner of the goods so seized. Thus it is clear that if the %goods are seized on the reasonable belief that they are smuggled goods, then only the burden of proving that those are not smuggled goods rests on the person specified in the said provision. However, the reasonable belief for seizure is missing in the case and so the burden of proof does not shift to the Appellant. The department fails to prove and establish their case. In the situation, I find that the impugned order confiscating the silver boondi and silver jewellery is not in

I find that the impugned order confiscating

the goods are being smuggled in nature and the seller and purchaser and quantity of smuggled goods is not established. In these circumstances I find no infirmity in the impugned order and the appeals are dismissed.’

I find that the aforesaid case law is squarely, applicable in the instant case and there is no violation of Section 121 by the Appellant in view of the discussions made above.

19.2 The Appellant has submitted copy of Purchase invoices for the period 2019­2020, cash book for the aforesaid period, sale invoices for the period 01.10.2019 to 21.10.2019, GST Returns for the period 2019-20, Balance Sheet for the Financial Year 2013-14 to 2018-19 in the instant proceeding. On perusal of income portion of the profit & Loss Account of the appellant it is noticed that the appellant has shown income mainly from sale of Gold Jewellery and Silver Jewellery. Further on perusal of sale invoices it is noticed that applicable GST has been paid on sale invoices and the same has been reflected in the GST Returns also. The aforesaid fact has also been verified by the Respondent department and it has been contended that no complete address or PAN is mentioned in the invoices and it is not verifiable in absence of the same. In this regard it is noticed that transactions in the aforesaid invoices are of below two lacs and mentioning of PAN is not mandatory in such case. Further it is noticed that there are different buyers of small quantity of silver Jewellery and there is no statutory requirement of submitting any documents of address proof in such sale. It is the general practice of trading business that whatever name and address the buyers of the jewellery intimate, the same is reflected in the invoices. Accordingly the sale of the Jewellery can not be denied on the basis that buyers of the goods are not verifiable. Therefore it is observed that allegation of selling smuggled goods by the appellant is based on assumption, presumption, surmises and conjectures only. I find that the Department has miserably failed to provide any evidence regarding sale of smuggled goods. In absence of any cogent evidence the sale of jewellery by the appellant can not be denied.

19.3 On perusal of cash book it is noticed that date wise entries of sales of gold and silver jewellery are reflected in Cash Book for the period, i.e. 01.04.2019 to 31.03.2020. It is also noticed that the Appellant has shown opening balance of cash in hand amounting to Rs. 77,16,828/- as on 21.10.2019. Further Cash Book on the aforesaid date reflects GST sales amounting to Rs.1,98,800/. As per the cash book it is noticed that the Appellant has made expenses amounting to Rs. 213/on the aforesaid date. Accordingly closing balance as per Cash Book on 21.10.2019 is Rs. 79,15,415 (Rs.77,16,828/+ Rs.1,98,800/ – Rs. 213/) which has also been duly certified by the Chartered Accountant in his certificate dated 9.9.2021. It also eflects the seizure amount of Rs.79,00,000/ by Customs. I observe that the closing balance is greater than seized amount of cash, hence covers the seized amount also. Therefore, there cannot be any question regarding non accountal of the seized cash amount. It is also found that such documents were also submitted at the time of Adjudication proceedings. I am of the view that providing the cash books for the

the time of Adjudication proceedings.

9. We do agree with the observations made by the ld. Commissioner (Appeals), in view of the above, we do not find any infirmity in the order passed by the ld. Commissioner (Appeals) and do agree with the same.

10. In that circumstances, we do not find any merit in the appeal filed by the Revenue. Accordingly, the same is dismissed.

11. Cross Objection also gets disposed off in the above terms.

(Operative part of the order was pronounced in the open court)

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