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TMI Blog2025 (2) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT] held that where there was nothing on record to show that the goods were seized by the Police on reasonable belief that they were smuggled goods, Section 123 would not apply. Revenue relied on Commissioner of Customs, Cochin Vs Om Prakash Khatri [2019 (3) TMI 457 - KERALA HIGH COURT] in which it is held that "Burden of proof, reasonable belief, unmarked gold recovered from the possession of two persons and their statements as to the source of the gold sufficient to have a reasonable belief that gold is smuggled. No satisfactory explanation given to prove the legitimacy of the gold carried by intercepted persons. Burden of proof under Section 123 of Customs Act, 1962 being only of a reasonable belief, effectively discharged by Department. Mere fact that interception and seizure not affected in an international border or near an airport or seaport irrelevant. Onus to prove that the gold was not smuggled, so as to upset the reasonable belief entertained by Department shifted and squarely rested on owner. Registered produced and the transactions alleged as well as the quantity seized and that seen from the alleged Travel Authorisation Vouchers not tallying". The seized gold or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased, the seller name etc. It is clearly and categorically stated by the applicant that the statement is obtained by force and threat. Any person who is in custody of a law enforcing agency, if compelled to make a statement, that person is bound to give such a statement, as per the instructions of officers. And once the statement is retracted that too with evidences, then the authority must take only the version which is supported by evidences in clear terms vide the retraction letter. It is pertinent to mention here that the very burden of proof that goods are of foreign origin is with the department. Thus the findings of the authorities below are absolutely unsustainable and wrong. Therefore, he prays to set aside the same. 5. On the other hand, Learned AR argued that there is sufficient evidence to prove that the gold seized were smuggled gold and rightfully confiscated and imposed penalties. The onus to prove that it was not smuggled was on them in view of provisions of Section 123 of Customs Act, 1962 which they have failed to discharge. 6. Heard Learned Counsel for the appellant Shri T. Chezhiyan and Learned AR Shri Sandeep Kumar Payal for the Department and perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wellers, Chennai was recorded under Section 108 of Customs Act 1962, wherein he stated,; that he got an order over phone from the three Appellants; that he issued three invoices dated 05.04.2022 for the orders received from the three Appellants; that he subsequently received the amount through RTGS transactions to his bank account; that as a trade practice he offer credit facility for 25-30 days for the purchased made from his shop for the sincere and committed customers (i.e three Appellants) 2.7 A statement dated 14.06.2022 was recorded from the Appellant - 2, under Section 108 of Customs Act 1962, wherein he stated; that he knew the Appellant-1 and the Proprietor of M/s Jain Jewellers as part of his business; that he ordered gold jewellery of 43.480 grams (2 mangalsutra chains) to M/s Jain Jewellers over phone; that he requested the Appellant-1 to collect the same from Chennai; that he paid the amount on 08.04.2022 through RTGS transactions and submitting invoice and Bank transaction details as proof against the purchase he made. 2.8 A statement dated 14.06.2022 was recorded from the Appellant - 3, under Section 108 of Customs Act 1962, wherein he stated; that he knew the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld belongs to them. There are no any material retractions or contradictions in their statement. Their statements are natural. No any special delays in statement of Appellant No. 1 on 05.04.2022 and 23.05.2022. Findings of Adjudicating Authority as well as Commissioner (Appeals) are based on assumptions and presumptions. M/s Jain Jewellers accepted to receive payment through RTGS. In business, payment as such in the statement are natural transaction. 12. The word "smuggling" is defined under Section 2(39) as: "smuggling" , in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113; Section 111: Confiscation of improperly imported goods, etc -- The following goods brought from a place outside India shall be liable to confiscation ---- xxx xxx xxx xxx 13. In these cases, no any facts relating to Section 113 of the Customs Act. Accordingly, Section 111 the goods brought from outside India. The seized goods recovered from Railway Station, Puttur. The seized goods are domestic ornament. Appellant No. 1 stated in his statement that he is having a small shop and is working as a gold worker since 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 402 (Ker)] in which it is held that "Burden of proof, reasonable belief, unmarked gold recovered from the possession of two persons and their statements as to the source of the gold sufficient to have a reasonable belief that gold is smuggled. No satisfactory explanation given to prove the legitimacy of the gold carried by intercepted persons. Burden of proof under Section 123 of Customs Act, 1962 being only of a reasonable belief, effectively discharged by Department. Mere fact that interception and seizure not affected in an international border or near an airport or seaport irrelevant. Onus to prove that the gold was not smuggled, so as to upset the reasonable belief entertained by Department shifted and squarely rested on owner. Registered produced and the transactions alleged as well as the quantity seized and that seen from the alleged Travel Authorisation Vouchers not tallying". The seized gold or ornament, there is no sufficient reason to believe the gold is smuggled. Appellants have given satisfactory explanation about the seized gold. Therefore, this case law is not applicable in this case. 19. As mentioned above fact, evidence & circumstances, Revenue prima facie fai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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