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1985 (5) TMI 233

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..... resulted in the recovery of 5 slabs of foreign gold in the form of biscuits, weighing 583 gms. Since the appellant was not able to satisfactorily account for the possession of the same, the same was seized by the Railway police under mahazar attested by withnesses Arjun Rao and S.A. Rahim, railway officials. The appellant himself was produced before the Judicial Magistrate for remand and was later released on bail by court. Intimation of seizure having been sent to the Central Excise authorities, the Central Excise authorities took possession of the gold under seizure from court for further investigation. Investigation by the authorities under the provisions of the Customs Act revealed that the appellant was concerned with the foreign gold .....

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..... lant. It was further urged that the appellant prefalicated and did not give his correct name before the authorities and this circumstance, coupled with the absence of any protest on the part of the appellant with reference to the recovery of the gold under seizure from his person would shift the onus on to the appellant. Finally, it was urged that the power to impose penalty under Sec. 112 of the Act is not in any way conditioned by or subject to confiscation and if the gold under seizure is confiscable and if the appellant is concerned with the contraband gold, penalty can be imposed on him under Sec. 112 of the Customs Act. 5. I have carefully considered the submissions of the parties herein. This is a case where, according to the Depa .....

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..... correct name was Sri Varre Sivaprasad Babu and that he was not in a position to make or give statement in this case. If really a false mahazar is prepared against the appellant and the gold of foreign origin was not recovered from the person of the appellant, it does not stand to reason as to why the appellant did not choose to protest against the same and state it in spite of the fact that several opportunities were given to him. The mahazar evidencing recovery of foreign marked gold from the person of the appellant, the production of the same before the Judicial Magistrate, evidence of the railway officials M/s. Arjun Rao and Rahim, implicating the appellant before the adjudicating authority as one from whose person the gold was seized .....

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..... the Delhi High Court reported in 1978 Cencus 219D in the case of Prem Raj Madan Lal Aboti and another v. Collector of Central Excise, Poona and contended that imposition of the penalty on the appellant is not legally sustainable since there was no seizure with a suspecting mind by the officers of the Customs under the Act . I am afraid the ratio decidendi in the ruling cited above has no application to the facts of this case and indeed, in the said ruling itself the proceedings instituted and the penalty imposed under Sec. 112 of the Customs Act has been upheld. The learned counsel also relied upon the ruling of the North Regional Bench of the Tribunal reported in 1983 E.L.T. 2086 (CEGAT)=1984 ECR 428 (CEGAT) in the case of Ranjit Ram v. .....

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..... to the applicability of the presumption under Sec. 123 of the Act. Since Sec. 123 of the Act has not been invoked by the adjudicating authority in the present case, in my opinion, the ruling has no bearing on the issues arising here for consideration. Finally the learned counsel drew my attention to a ruling of the Central Board of Excise and Customs reported in 1981 ECR 645 D (CBEC) in the case of Pravinchandra Amlakah Waghani and others v. Collector of Central Excise, Ahmedabad and contended that the Department must prove the case and the mere fact that the case of the Department may be true could not be sufficient. It should be noted that proof beyond reasonable doubt is the measuring yardstick in a criminal prosecution before a crimin .....

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