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5.Mr. Karan Sehdev, Proprietor of KSTE inhis statement dated 22.10.2019 admitted that they have sent 30194.2 grams of gold to STM, Imphal and received back 25234.11 grams gold after job work and 4956.41 grams of gold jewllery after the job work is held with Imphal Customs, since 17.05.19. Thus Mr. Karan Sehdev, proprietor KSTE has owned the ownership of the gold sent for job work and accepted that the gold bangles seized by DRI, Imphal was part of the gold sent by him for job work to STM, Imphal.

14. Burden of proof under Section 123:-

14.1 The Appellant stated that the gold/silver were seized by DRI on the reasonable belief that they were smuggled goods. Under Section 123 of the Customs Act, 1962, the burden of proof that they are not smuggled goods is on the person, who claims to be the owner of the goods. The contention of the department is that the onus in the instant case for proving that the gold biscuits/bars and the silver bar of foreign origin are not smuggled in nature lies on Shri Rohit Kumar Suri and Shri Harshit Gakhar from whose possession, the impugned goods were seized.However, Mr. Karan Sehdev, Prop. of M/s. KSTE, Delhi in his statement dated 22.10.2019inter alia stated that he is holding GSTIN 07CNSPS5929M1ZV and they sent gold for job-work to M/s.STM, Imphal. He further, deposed that they sent 30194.200 grams of gold to M/s. STM, Imphal for job-work and they have received back 25234.110 grams gold from the job-worker - M/s. STM. The goldof 4956.41grams dispatched by M/s. STM, Imphal vide their invoice No.J-00037 dt.17.05.2019 was seized by DRI, Imphal on 17.05.2019.
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Customs Appeal Nos.75315, 75342 & 75343 of 2022 18.3 We find merit in the argument of the Appellants. The gold bangles seized from Indigo airlines, does not have any foreign markings. They were claimed by Mr Karan Sehdev of KSTE that they have sent the raw gold for job work to M/S STM, Imphal. The gold was purchased by them from indigenous sources, but DRI Officers have not taken into account the evidences submitted by them about their legal purchase in India. The goods were dispatched along with an Invoice raised by the job worker. Allthese documents indicate that the raw gold was indeed received by M/S STM, Imphal from M/S KSTE, New Delhi for job work and they were dispatched after completion of the job work by M/S STM, Imphal. There is no evidence available on record to prove that the gold were smuggled from Myanmar. Except the statements of the Co Noticces, which were later retracted, there is no other evidence available to establish the smuggled nature of the gold. In view of the above discussion and relying upon the cases laws cited above, we hold that the gold jewellery which were dispatched under proper Invoice are not liable for confiscation.

19.4. The contention of the Appellant is that the gold bangles and silver bar were not of foreign origin. Section 123 of Customs Act is applicable only to foreign marked gold and silver. Since, there is no foreign mark available on the gold bangles and silver bars seized from the Appellants, the provisions of section 123 is not applicable in this case 19.5 The Appellants stated that Sh. Karan Sehdev, Proprietor of M/s. KSTE, Delhi in his statement dated 22.10.2019 inter alia claimed that he has sent the gold for job-work to M/s. STM, Imphal. A perusal of the details of the gold sent by M/S KSTE reveal that they have sent Customs Appeal Nos.75315, 75342 & 75343 of 2022 30194.200 grams of gold to M/s. STM, Imphal for job-work and received back 25234.110 grams of gold after job-work from M/s. STM, during the period March 2019 to 17.05.2019. The gold bangles 4960.090 grams sent vide invoice No.J0037 dt. 17.05.2019 to M/S KSTE by M/s. STM was seized by DRI on 17.05.2019. Thus, it reveals that this is not the first time M/S STM are processing the gold and returning the same back to M/S KSTE. On many occasions earlier M/s KSTE have sent gold to M/S STM and received them back after the job work. It cannot be presumed that all the gold jewellery sent after job work on earlier occasions were also made out of smuggled gold. The present consignment covered by Invoice no. J 0037 dated 17/05/2019 was part of the gold received earlier and returned back now after job work. The documents submitted by the Appellants clearly indicate that the gold were purchased from indigenous sources. The provisions of section 123 are not applicable to indigenously procured gold. Hence, we find merit in the argument of the Appellants.