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TMI Blog1986 (7) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... 225 to 227/85 (MAS). 2. On 14-6-1984 at 6.00 AM, the Superintendent of Central Excise, Hqrs. Preventive, Coimbatore alongwith his officers visited the residential premises of appellant Smt. Kannammal on the basis of information and recovered therefrom 7 gold slabs kept under a cover of paper packet in a trunk box alongwith ten paper chits. The total quantity of gold was found to be 1046.200 gms. Since the gold in rectangular and square shapes were believed to be in a changed form from out of smuggled gold and since no acceptable explanation was offered by the persons concerned for the licit acquisition of the same, the gold was seized by the authorities as per law, under mahazar, attested by witnesses. Appellant Kannammal gave a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority has not invoked the presumption against the appellants in terms of Section 123 in the show cause notice and so the same cannot be relied upon in the order of adjudication against the appellants. The learned Counsel further contended that notwithstanding the fact that the report of the Mint Officer dated 31-8-1984 contains a finding that the gold concerned in the case is of foreign origin, no reasons have been given by the authority for reaching that finding. It was therefore, contended that no reliance could be placed on the report of the Mint Officer. It was further urged that the Mint Officer has also remarked that to the best of his knowledge and belief, no bullion dealer, refiner etc., in India, is known to manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have neither rebutted nor challenged the correctness of the same, the finding under the report is conclusive to establish that the gold under seizure is of foreign origin. The learned SDR further urged that once the gold under seizure is proved to be of foreign origin, the presumption under Section 123 of the Act would become automatically applicable and in the instant case, the appellants have not rebutted the presumption arising against them under Section 123 of the Act. The learned SDR further submitted that gold of foreign origin would be confiscable in terms of Section 111(d) of the Act and the mere fact that the contraband gold has been given a different shape or form making it liable for confiscation under Section 120(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the show cause notice comes only within the mischief and ambit of Section 120(1) of the Act, the adjudicating authority is not entitled to confiscate the gold under Section 111(d) of the Act much less entitled to invoke the presumption in terms of Section 123 of the Act is not legally tenable. As rightly contended by the learned SDR, Section 123 of the Customs Act merely deals with burden of proof in respect of articles like gold, diamonds etc. and in terms of Section 123, if seizure of goods notified under Section 123 is made from the possession of any person, the person from whose possession such goods are seized should prove that they are not smuggled goods. We therefore, do not find any substance in the plea of the learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial scale, does not in any way help the appellants at all. Even assuming for the purpose of argument that high purity gold is being manufactured by bullion dealers or refiners, if not on commercial basis, at least on a small scale basis, as contended by the learned Counsel for the appellants, that would not in any way detract from the finding of the Mint authority that the gold concerned in the instant case is of foreign origin. We do not find any substance in the plea of the learned Counsel that the report of the Mint authority is signed by the General Manager of the Mint and so not acceptable. The point which presumably, the learned Counsel is trying to make out of this plea is that the authority who actually conducted the test has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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