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TMI Blog2022 (2) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipts to prove that the gold biscuits and ingots seized from him have been brought into the country by paying respective charges. Though under Section 123 of the Customs Act the initial burden to prove that the gold seized from the possession of the accused was not smuggled goods lies on the person in whose possession the gold was seized, but once the accused produces the receipts for the import of gold, then the burden shifts to the Department and the Department will have to prove that the baggage receipts do not pertain to the gold which was found in possession of the accused. Since no such evidence has been produced before the Tribunal or before this Court, this Court does not deem it fit and proper to interfere with the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs) got prior information that some gold biscuits of foreign origin were secretly kept at a shop in Secunderabad. Therefore, they searched the shop and found that one person by name Mr. C.Srinivas was in possession of 10 numbers of foreign marking gold biscuits and another person by name Mr. R. Kailash was in possession of 13 numbers of foreign marking gold biscuits and 2 numbers of gold ingots. Since both of them could not produce any evidence evidencing the legal import of gold worth ₹ 14,00,000/-, the same was seized and the statements of both the persons were recorded under Section 108 of the Customs Act, 1962. Both persons admitted that they do not have any duty paid receipts for the gold found in their possession and that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipts and since no receipts were submitted at the time of seizure, the arguments put forth subsequent to seizure, were only an after-thought and are liable to be rejected. In so far as Sri C.Srinivas s explanation was concerned, the Commissioner held that the story that the gold was obtained from locals and purified is farfetched and does not merit consideration. He therefore imposed the penalty of ₹ 5,00,000/- on Mr. Kailash, ₹ 1,00,000/- on Mr. Srinivas and ₹ 10,000/- on Mr. Poppat for abetting the above offence. 4. Apart from the above order, a case for launching prosecution was filed in C.C.No.29 of 1999 before the Economic Offences Court, Hyderabad. However, the Economic Offences Court vide order dt.15.02.2001 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the spirit of Section 123 of the Customs Act, 1962, that the burden of proof lies on the respondent that the gold seized from him is not smuggled gold? (3) Whether the CESTAT is justified in setting aside the Order-in- Original dt.31.10.1997 passed by the Commissioner by observing that seizure was made by Police without any evidence to that effect and relying on judgments which are not relevant in the present case? 6. Learned counsel for the appellant Department submitted that the statements of the accused were recorded under Section 108 of the Customs Act and therefore, the said statements cannot be said to have been obtained under threat and cannot be ignored while passing the order in Appeal. He submitted that under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. R. Kailash, though he has given a statement under Section 108 of the Customs Act, admitting that he has no duty paid receipts for the gold biscuits found in his possession, he rebutted the same by producing baggage receipts to prove that the gold biscuits and ingots seized from him have been brought into the country by paying respective charges. Though under Section 123 of the Customs Act the initial burden to prove that the gold seized from the possession of the accused was not smuggled goods lies on the person in whose possession the gold was seized, but once the accused produces the receipts for the import of gold, then the burden shifts to the Department and the Department will have to prove that the baggage receipts do not pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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