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Issues:
1. Application of Section 123 to the recovery of gold biscuits with foreign markings. 2. Justification for the imposition of a penalty under Section 74 of the Gold Control Act, 1968. Analysis: Issue 1: The case revolved around the application of Section 123 concerning the recovery of gold biscuits with foreign markings. The police officers, not customs or gold control officers, conducted the search and seizure. The recovery memo and the statement under Section 161 of the Cr. P.C. formed the basis of the adjudication. The appellant argued that the burden of proof under Section 123 did not apply since the seizure was not conducted by the proper officer. The tribunal agreed, emphasizing that the burden of proof rested on the revenue due to the seizure being carried out by the police, not the authorized officers under the Acts. Issue 2: The second issue involved the justification for imposing a penalty under Section 74 of the Gold Control Act, 1968. The departmental representative contended that the statement recorded under Section 161 of the Cr. P.C. should be considered as evidence. However, the tribunal disagreed, citing Section 162 of the Cr. P.C., which states that such a statement is not admissible as evidence unless to contradict a witness. As the seizure and statement were not properly brought into the adjudication proceedings, the tribunal ruled in favor of the appellant, stating that the penalty should be refunded. In conclusion, the tribunal allowed the appeal, emphasizing that the burden of proof was on the revenue due to the seizure being conducted by the police and not the authorized officers. The tribunal also highlighted that the statement recorded under Section 161 of the Cr. P.C. was not admissible as evidence in the adjudication proceedings, leading to the decision to refund the penalty amount to the appellant.
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