9911796707
TMI Blog1998 (4) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... tter was remanded to the Tribunal for fresh hearing of the appeal on merits. 2. Briefly stated the facts are that on the basis of intelligence, the residential premises cum Guddi of the appellant was searched on 30-11-1975 which resulted in the recovery of the gold ornaments, diamond and diamond studded jewellery. The officers seized the same for action under both the Customs Act and Gold (Control) Act. The Additional Collector, Customs under Order No. 208 dated 6-5-1977 ordered confiscation of the primary gold and the gold jewellery studded with diamond under Gold (Control) Act and imposed a penalty of Rs. 2,000/- on the appellant. The Additional Collector, Customs also confiscated the gold, diamond and jewellery under Section 111(d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was no clear involvement of any contraband gold. The ld. Adv. therefore, contended that as far as goods at Serial No. 1, 2, 3, and 10 of the search list are concerned, these had been released to the appellant on the ground that these gold is not contraband gold; that this order has achieved finality as no appeal has been filed by the department. It is clear that these items were not smuggled goods as per the seizure list also. Regarding diamonds and manufacture of diamond, he submitted that these were not notified under Chapter IVA of the Customs Act, that presumption under Section 123 of the Customs Act does not arise as there was no basis for holding the reasonable belief that the goods were smuggled goods; that the goods must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by circumstantial evidence. He mentioned that in the present case even circumstantial evidences are not available. 4. Shri T. Premkumar, ld. SDR, submitted that the proceedings under the Gold (Control) Act are independent of the proceedings under the Customs Act. Both proceedings are totally different in nature-one is for the possession of gold and ornaments of gold unauthorisedly whereas proceedings under Customs Act is about smuggling of gold into the country. Accordingly any observation made in Gold (Control) proceedings will not be relevant to the proceedings under the Customs Act. He referred to the provisions of sub- section (2) of Section 123 of the Act according to which the provisions of Section 123 apply to gold, diamonds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled nature of the goods and the appellant has not discharged his burden of proving that the goods were not smuggled goods. He also mentioned that belated affidavits submitted by the appellant were not admissible. He relied upon the decision in the case of Indru Ram Chand Bhaswani v. Union of India - 1992 (59) E.L.T. 201 (S.C.) in which it was held that the facts that the affidavits had been filed long afterwards and the names of the parties were not disclosed at the time of the search, warrant rejection of the affidavits. In reply the ld. Adv. submitted that the legislature is found to have directed that a mere belief of an officer that the goods in question are smuggled, would not do, as that belief should be based on some reason; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment, while holding that the contravention of Sections 8(1), 27(1), 41(b) and 55(2) of the Gold (Control) Act was clearly established, came to the conclusion that there was no clear involvement of any contraband gold. There is no force in the submission of the ld. SDR that this finding about the nature of the gold in the Gold (Control) Act proceedings cannot be made applicable to the proceedings under the Customs Act. The Revisionary Authority under the Gold (Control) Act allowed the redemption of gold and gold jewellery on payment of fine of only Rs. 3,000/- holding that there was no involvement of contraband gold. Once there is a finding about the nature of the impugned gold and gold jewellery, it cannot be hold that the gold was of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were imported into the country and imported at a time and place when they were restricted or prohibited from being imported. If the adjudicating authority is not satisfied that the goods were seized on a reasonable belief, Section 123 cannot be invoked and in that event it would be for the Customs authorities to prove that the goods were smuggled and Section 123 in that event would have no application. If, therefore, Section 123 is wrongly applied and the presumption thereunder is raised, without the condition precedent thereunder having been satisfied, the entire inquiry and the order passed therein would be vitiated. In view of these facts and circumstances, there is no conclusive proof that the impugned goods were of smuggled origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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