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TMI Blog2014 (2) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... nus of proof upon the Customs Department. The Tribunal has also erred in holding that the statement given under Section 108 of the Act once retracted was not admissible in evidence, particularly because before the Carrier was produced before the Chief Judicial Magistrate he was in custody of the Customs officials for more than 24 hours. The Tribunal, however, has overlooked the fact that the Carrier, when produced before the Chief Judicial Magistrate on 24th April 1996, did not complain of atrocity, duress or coercion. Retraction was an afterthought. Had the Carrier given the statement under Section 108 of the Act under coercion he would have made complaint before the Chief Judicial Magistrate. Although, the Tribunal did find that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the seizure, on 23rd April, 1996 the said Amar Kishore Prasad (hereinafter referred to as the Carrier ) gave the statement under Section 108 of the Act. In the said statement the Carrier admitted that the seized gold was given to him for delivery at Muzaffarpur by the owner of the gold one Amar Kishore Prasad of Raxaul (hereinafter referred to as the Owner ); that the gold was brought by the Owner from Nepal; the gold was dissolved at Birganj in Nepal to remove the markings. The said Carrier was produced before the Chief Judicial Magistrate, Muzaffarpur on 24th April, 1996. The Chief Judicial Magistrate under his order dated 24th April, 1996 recorded that the Carrier had not complained of ill treatment at the hands of the search party. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner had acquired the seized gold. According to the Tribunal, the Customs Department had failed to establish that the seized gold was contraband gold smuggled into the territory of India. Accordingly, the Tribunal allowed the appeals and set aside the orders of the Commissioner of Customs (Appeals). Therefore, the present Appeals. 5. Learned Advocate Mr. Rakesh Kumar Singh has appeared for the appellant Commissioner of Customs, Patna. He has assailed the judgment of the Tribunal. He has relied upon Section 123 of the Act. In the submission of Mr. Singh burden of proof lies on the owner of the seized goods. The Tribunal below has, without referring to Section 123 of the Act, manifestly erred in shifting the burden of proof upon the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the records before us. It does appear that the Owner did submit before the Customs authorities that he had procured the seized gold from his customers at Raxaul. However, he failed to prove the statement. Section 123 of the Act, inter alia, provides that the burden of proof that the seized goods are not the smuggled goods lies on the person who claims to be the owner of the goods seized. Thus, the burden to prove that the seized gold was not smuggled lay upon the Owner. The Tribunal has erred in shifting the onus of proof upon the Customs Department. The Tribunal has also erred in holding that the statement given under Section 108 of the Act once retracted was not admissible in evidence, particularly because before the Carrier was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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