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TMI Blog2024 (7) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 123 of the Customs Act, 1962 are applicable or not? HELD THAT:- The said issue has been examined by the Hon ble Apex Court in the case of GIAN CHAND AND OTHERS VERSUS STATE OF PUNJAB [ 1961 (11) TMI 1 - SUPREME COURT] , which was followed by this Tribunal in the case of MAHESH B. MALI VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [ 2013 (4) TMI 7 - CESTAT MUMBAI] , wherein this Tribunal has observed ' The provisions of Sea Customs Act and the Customs Act, 1962 are identical with respect to the seizure and the onus of proof in the instant case. From the records it is evident that it is the police who seized the goods on 6-11-2009 and thereafter they were handed over to the Customs authorities by the police on the request of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and were put inside lock-up and after 2-3 hrs. they were informed that there is recovery of 26 kgs. of gold bars from a laptop bag kept at the said vehicle and accordingly, the appellants were arrested in Nabadwip P.S. Case No. 187/15 dated 29.04.2015 alleging their offences u/s 413/414/379/411/34 of IPC and were produced before the Ld. Judicial Magistrate, 1st. Court, Nabadwip on 29.04.2015 when they were remanded to Police custody. Vide subsequent Order dated 6.5.2015, the said Judicial Magistrate directed the Police to hand over all seized goods and reported to the Customs Authority of Krishnanagar, Nadia and thereafter, Customs Authority booked a Seizure Case No. 01/IMP/CL/ Police/ KCD/2015 dated 22.05.2015. 2.1 Statements were record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle u/s 115 of the Customs Act, 1962; confiscation of Indian cash currency u/s 111(d) of the Customs Act, 1962; imposition of penalty u/s 112 of the Customs Act, 1962; prosecution of appellant, Sri Om Prakash Shah u/s 135 of the Customs Act, 1962. However, no copy of any relied upon documents to the said SCN was provided alongwith the SCN to the appellants. 2.3 That no notice of personal hearing was ever received by the appellants and suddenly, the appellants received an Adjudication Order dated 01.11.2016 whereby penalties of Rs.20 Lac, Rs.20 Lac and Rs.75 Lac were imposed upon the appellants, Sri Harish Chandra Prasad, Sri Manoj Kumar Shah Sri Om Prakash Shah respectively u/s 112(b) of the Customs Act, 1962. The private vehicle already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Judicial Magistrate , the same was handed over to the Customs, when the seizure case dated 22.05.2015 was booked and as such circumstances, the provisions of Section 123 of the Customs Act, 1962, does not apply in this case as the goods was not received from the appellants by the Customs Officers. It is his submission that it is settled position of law that in such circumstances, the burden of proof is on the Revenue to substantiate the alleged smuggled nature of the seized gold and unless such burden is discharged, no penalty can be imposed on the appellants. To support his contention, he relies on the decision of the Hon ble Apex Court in the case of Gian Chand and Others Vs. State of Punjab reported in 1983 (13) ELT 1365 (SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered. Therefore, the appellants are seeking immunity from the appellants imposed on the appellants in the facts and circumstances of the case. 7. In that circumstances, we are going to decide whether the present facts and circumstances of the case the penalties can be imposed on the appellants or not ? 8. We find that in these cases, the seizure was done by the Police and later on, it was handed over to the Customs on the direction of the Judicial Magistrate for handing over the seized goods to Customs Authorities at Ranaghat, Nadia. Therefore, the question arises when the seizure case has been done by the Police and the Police handed over the said goods to the Customs, in that circumstances, the provisions of Section 123 of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records it is evident that it is the police who seized the goods on 6-11-2009 and thereafter they were handed over to the Customs authorities by the police on the request of the Customs authorities. In other words, the Customs authorities did not seize the goods from the appellants; therefore, the provisions of Section 123 which casts the onus on the appellants to prove that the goods are not smuggled is not applicable, inasmuch as no seizure has been made from the appellant by the Customs. The same view has held by the Hon ble High Court of Bombay in the case of Prithviraj Pokhraj Jain (cited supra) and by this Tribunal in a number of cases such as Nirmala Mitra [2001 (138) E.L.T. 1037 (Tri.-Kol.)], E. Eshwara Reddy, Naveed Ahmed Khan, etc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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