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TMI Blog1999 (3) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Advocate submits that on 19-8-1993 the Police apprehended the appellant Shri S. Satyanandam and recovered 9 Gold biscuits with Foreign markings. He was arrested and remanded to custody. The Customs Officers applied to the Remand Court and then took over the goods for proceedings under Customs Act, 1962 as per the Court's Order. The statement of Shri Satyanandam was recorded on 25-8-1993 under the Customs Act wherein he deposed that he was working as a Clerk with the appellant Shri Ghewarchand and that he was acting according to the instructions of Shri Ghewarchand. Learned Advocate submitted that on 20-9-1993 the said Shri Ghewarchand wrote to the Customs Officers enclosing Sale Receipt dated 13-8-1993 by Abdul Razak of Madras for 9 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden cannot be shifted on to the appellants. He cited the case of Yusuf Noor Mohammed v. C.C. as reported in 1991 (51) ELT 565 (Tribunal). He submitted that in this case it has been held that even if goods are of Foreign marked (Foreign origin) and even if persons are found to be fictitious, that by itself does not lead to the conclusion that these are smuggled goods. 5. He also cites the decision in the case of S.N. Sarcar and others v. C.C. as reported in 1985 (22) E.L.T. 186 (Tribunal) wherein it was held that with respect to 53 bales of garments, no presumption could be made that the goods was smuggled into India. 6. He further cites the case of Bonton Sight Care v. C.C. as reported in 1993 (64) E.L.T. 239 (Tribunal) whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the appeal needs to be considered favourably. 10. Heard Smt. Aruna N. Gupta, learned JDR. She submits that in a statement, Shri Satyanandam admitted that he had received the 9 Gold biscuits at Secundrabad and that in payment he had handed over the suitcase containing money given by Shri Ghewarchand and that on his return journey, he was apprehended at Rajahmundry by the Police. She submits that at the point of interception he had no document evidencing the licit origin of 9 foreign marked gold biscuits which fact was admitted by him. She submits that Shri Ghewarchand evaded the summons issued by Customs and his representation dated 20-9-1993 enclosing the said Baggage receipt, etc., was not only belated but an attempt to cover the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt was produced a month later by Shri Ghewarchand. Therefore the sum and substance of the evidence on record is that the appellant Shri Ghewarchand has submitted a reasonable explanation backed by the Baggage receipt. It is also not disputed that the quantity of gold of 9 biscuits is more than the quantity of gold contained in the Baggage Receipt. The Department has not been able to prove that this Baggage Receipt does not cover the seized gold because : (a) The Baggage receipt has on verification been found to be genuinely issued by Madras Customs; and, b) The Department has not been able to locate the holder of the said receipt, AbduI Razak. Since the burden was on the Department to do so, the Department cannot now simply b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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