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TMI Blog1997 (10) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... be returned to Shri Bharat Kumar by the department. 2. The facts as noted by the Commissioner are that on 17-9-1988, the police seized Rs. 35,000/- from Shri Bharat Kumar S/o Shri Babu Lal Soni, when he visited the shop of Shri Devi Lal at Jalore. The police handed over this Indian Currency to the Customs Department. The police had seized gold from Shri Devi Lal and Shri Sohan Lal against whom the proceedings were also initiated. The present proceedings are only to the extent of seizure of Indian currency and the modification of the order for return of the Indian Currency to Shri Bharat Kumar only. It was contended by Shri Bharat Kumar that the entry in Devi Lal s account book mentioning that the Indian Currency of Rs. 35,000/- had been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue being the shop of Shri Devi Lal. The registration authority for the jeep is in Jalore. The Bahikhata of Shri Babu Lal Soni, father of Shri Bharat Kumar shows the entry of Rs. 35,000/- to Shri Bharat Kumar but not the purpose. Therefore, the Commissioner has held that since the Indian Currency of Rs. 35,000/- had been seized from the possession of Shri Bharat Kumar, the law required it should be released to him alone and not to Shri Devi Lal whose account had been obviously tailored. 3. The Revenue in this appeal are contending that the Indian Currency was sale proceeds of the Foreign Mark smuggled gold and both Shri Bharat Kumar and Shri Devi Lal had not stated that the Indian Currency was to purchase vehicle whatsoever. The Bahi-Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as respondent by the Revenue filed a memo stating that he is withdrawing his vakalatnama as the party did not contact him. The learned Advocate for Bharat Kumar submitted that the department has not produced any evidence to show that the Indian Currency was sale proceeds of foreign marked gold. The statement recorded were immediately resiled and the affidavits had been filed before the Commissioner on 28-9-1988 itself. The learned Advocate submitted that there has been contradiction in the statement in each of the parties. No reliance can be placed on the contradictory statements as has been held in the case of Swapan Kumar Saha v. Collector of Customs, Bombay as reported in 1996 (83) E.L.T. 133. He submits that the respondents had produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent to the police as well as to the Customs Officers have immediately been resiled and the respondents have produced all the evidence to show the ownership of the gold. Such ownership of the gold and the evidence produced cannot be summarily rejected as an afterthought in the facts and circumstances of the case and there is no seizure of gold or any evidence to show that the Indian Currency are sale proceeds of contraband gold. 9. In the case of A.K. Agarwal v. Collector of Customs as reported in 1991 (52) E.L.T. 565, it has been held that the Indian Currency is not a notified item either under Section 123 or under Chapter IVA of the Customs Act. It has been held that there was no reason to seize Indian Currency. It has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra (supra) wherein it has been held that before violation of Section 121 has been established the following ingredients must be satisfied : (i) there must be a sale. (ii) the sale must be of smuggled goods. (iii) the sale must be by a person having knowledge or reason to believe that the goods were of smuggled origin. (iv) the seller and purchaser and the quantity of gold must be established by the Customs authorities. 11. This judgment has been followed in the case of Hukmi Chand Ghewar Chand Saraf v. Collector of Customs (supra). 12. In that view of the matter, on application of ratio of the judgments noted above and in the facts and circumstances of the case, there is no illegality in the order passed by the Commissioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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