BAL KISHAN SONI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) IN this appeal, which has been filed against the impugned order -in -appeal, the appellant has contested the confiscation of the goods (one gold bar) and imposition of penalty of Rs. 5,000/ -.

(2.) I have heard both sides and gone through the record. From the record, it is evident that on 24 -4 -1995, residential -cum -business premises of the appellant at Jodhpur was raided by the Customs Officers and one gold bar (10 tolas) was allegedly recovered from him. Shri R.P Meena, Asstt. Commissioner, headed that raiding party. From the record, it is also evident that he lodged a complaint against the appellant and his wife, Smt. Kanchan Soni, for having abused him and other members of the raiding party, but the same was dismissed by the Court. Smt. Kanchan Soni wife of the appellant filed a counter complaint in the Court alleging that she was molested by Shri R.P. Meena. The Panchnama, which was prepared at the spot, does not bear the signature of Shri R.P. Meena. Rather one Shri S.K. Pathank, Inspector, signed the Panchnama. It was not attested even by Shri S.S. Rawat, in whose favour the search warrant was issued for taking the search of the premises of the appellant. He in his statement has rather admitted -that he did not go inside the premises. The appellant is alleged to had run away from the spot, but no material has been brought on record to substantite this fact. Rather, Shri Rajesh Jain, Inspector, who was one of the members of the raiding party has stated that the gold bar was handed over by the appellant himself to Shri R.P. Meena. From the record, it is further evident that Shri B.S. Shekhawat and Shri Satender Rohiniwal, who were members of the raiding party gave different version regarding the recovery of the gold bar as according to Mr. Shekhawat, appellant, threw the gold bar on the road and he picked up and handed over the same to Shri R.P. Meena, while Shri Satender Rohiniwal has stated that when the appellant threw the gold bar, another inspector picked up and handed over to Shri R.P. Meena. There is apparently conflicting/contrary evidence regarding the manner of recovery of the gold bar from the possession of the appellant. Apart from this, there is no tangible evidence to prove the foreign origin and the smuggled character of the gold bar. There was no foreign mark on the gold bar recovered from the appellant. At the spot, a report was obtained from Shri Shiv Ratan Soni, Goldsmith, who on visual examination disclosed that it was 24 carats gold bar, but when sample was sent to Bombay mint for examination, it was not so found. Rather the bar was found to be of 23 carats.

(3.) THEREFORE , neither the confiscation of the gold bar could be ordered nor any penalty under Section 112(b) of the Customs Act could be imposed on the appellants. Consequently, the impugned order is set aside and the appeal of the appellant is allowed with consequential relief, as per law. (Dictated & pronounced in the open Court)