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returned as sale by job worker after processing/conversion of cost of other mate-
rial and labour basis. The Tribunal held that this was not violative of the prohibi-
tion of selling/transferring such goods. The present case is on a better footing as
admittedly the appellant has neither sold Beta Napthol to the job worker nor
purchased back the same from job worker.
10. As regard the judgment relied upon by Learned Authorized Repre-
sentative on careful reading of the same we find that as regard Hon’ble Supreme
Court Judgment in the case of Prestige Engineering (India) Ltd. We discussed
above and found that the same is in favour of the appellant.
11. As regard the decision of this Tribunal in the case of Modern Food
Industries (India) Ltd. (supra). The fact in that case was the goods was transferred
to sister concern by Book Adjustment, though no payment is made in cash or
because there is book adjustment it cannot be said that there is no sale. Firstly
this case is not based on job work transaction, secondly as per the facts of the
present case there is no book adjustment by the appellant in their books which
amount to sale of goods. The goods was admittedly sent on job work basis under
the cover of Annexure-II Challan and no amount on account of such supply was
debited to the job worker in the books of the appellant therefore, the facts of the
cited judgment of Modern Food Industries (India) (supra) is absolutely different
from the facts of the present case.
12. As per our above discussion and observation which is supported by
various judgments including the judgment in the appellant’s own case, we are of
the considered view that appellant have not contravened the condition of Notifi-
cation Nos. 93/2004-Cus. and 32-2005-Cus. Hence, the demand of duty, interest
and consequential penalties are not sustainable.
13. We, therefore, set aside the impugned order and allow the appeals,
with consequential relief, if any, in accordance with law.
(Pronounced in the open Court on 11-2-2020)
_______

2020 (372) E.L.T. 606 (Tri. - Kolkata)
IN THE CESTAT, EASTERN BENCH, KOLKATA
S/Shri P.K. Choudhary, Member (J) and Bijay Kumar, Member (T)
SANTOSH KUMAR PODDAR
Versus
COMMISSIONER OF CUSTOMS (PREV.), KOLKATA
Final Order Nos. 76957-76960/KOL/2019, dated 18-12-2019 in Appeal Nos.
C/76711, 76693, 76694 & 76712/2016
Smuggling - Gold - Burden of proof - Ownership of gold not agitated
at any point of time - Seized gold duly recorded in the books of account of
M/s. Anjani Gold Private Limited which was admittedly computerized - Pur-
chase invoice issued by State Bank of India showing that 198015.52 grams in
Customs auction is also not disputed by the Revenue - Thus obligation under
Section 123 of Customs Act, 1962 discharged by the claimant of gold - Revenue
not able to adduce any evidence to prove that subject gold illegally imported
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