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TMI Blog2025 (3) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act in which he stated that "He is working as part time worker in M/s Dattatreya Associates in Durgi, owner is Shri Kapalavai Naga Samba Siva Rao. As per the directions of his Associates in Durgi. His owner is Shri Kapalvai Naga Samba Siva Rao. His owner is paying him Rs. 20,000/- per month excluding travel and food expenses. As per the directions of his owner i.e Shri Kapalavai Naga Samba Siva Rao (owner of M/s Dattatreya Associates in Durgi), on 17.10.2022, he started from Durgi to Nellore along with cash of Rs. 43,50,000/- given by owner and reached Nellore. Statement recorded under Section 108 of The Customs Act is admissible in evidence but such statement may be scrutinised in facts and circumstances of the case. It cannot be presumed that statement recorded by Customs Officer will be treated as gospel truth. Learned Counsel for the appellants argued that Department prepared a concocted story and witnesses are habitual/pocket witness. He produced a copy of Panchanama dated 20.03.2023 at 19.45 hrs onwards relating to place Prakasam District, Andhra Pradesh in which a witness named Shri Gedela Nageswara Rao with same address. How it is possible a person will be available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled gold. Impugned order is based on assumption and presumptions nothing else. 5. Learned AR for the Department reiterated the findings given by the Adjudicating Authority as well a Commissioner (Appeals). Certified gold appraiser certified that seized gold is of 24 carats purity. The Officers on reasonable belief that the 10 pieces of gold totally weighing 850.39 grams was illegally smuggled into India. Shri Burri Yedukondalu admitted in his statement that gold was illegally imported gold which was melted and recast into bars. The gold was seized under reasonable belief then burden of prove that seized gold is not smuggled rest on person from whom it was seized. Whereas Appellants are failed to prove that seized gold is not smuggled. 6. Heard Learned Counsel for the appellant Shri MVS Prasad and Learned AR for the Department Shri A Rangadham and perused the records. 7. The word "smuggling" is defined under Section 2(39) as under: "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; Therefore, smuggling means any goods which are liable to be confiscated under Section 111 or Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Dattatreya Associates in Durgi. His owner Shri Kapalavai Naga Samba Siva Rao might be knowing about the documents/invoices/bills of entry and modes of payment". Further statement of Shri Burri Yedukondalu was recorded on 15.11.2022 in which he states that "He knows Shri Kapalavai Naga Sambasiva Rao for the last 10 years. Shri Kapalavai Naga Sambasiva Rao is a ration shop dealer and he knows him as he was also into the same business before. However, he stopped that business and currently into driving. Shri Kapalavai Naga Sambasiva Rao stated gold business 5-6 months back and employed him for his gold business activity. Most of the business transactions of Shri Kapalavai Naga Sambasiva Rao either in cash or through RTGS. As per the directions of his owner he went to Nellore and handed over the cash of Rs. 43,50,000/- to Deva alias DJ and brought the smuggled gold in return". In these statements he states that gold was purchased on instruction of Shri Kapalavai Naga Sambasiva Rao, who is Proprietor of M/s Dattatreya Associates in Durgi after transfer of Rs. 43,50,000/- cash given by Shri Kapalavai Naga Sambasiva Rao whereas Shri Kapalavai Naga Sambasiva Rao stated in his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. 12. Learned AR relied on Hon'ble High Court of Kerala judgment in the case of Commissioner of Customs, Cochin Vs Om Prakash Khatri [2019 (366) ELT 402 (Ker)] which was confirmed by Hon'ble Supreme Court in Om Prakash Kathri Vs CC [2019 (11) TMI 796 - SC] in which it was 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 beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that gold was foreign origin, was admissible. In this case, no any such admission that seized gold is related to foreign made gold or smuggled gold which is melted and prepared as gold bars. Therefore, this principle is also not applicable in this matter. 16. He further argues that it is a settled law that testing the purity of gold by touch-stone method is not accurate for determining the purity of gold. In this regard, he relied on Hon'ble High Court of Kerala in the case of Pakeer Muhammed Firoskhan Vs Asst. Commissioner of Customs [2010 (252) ELT 363 (Ker)] in which it was held that touch stone method is not a foolproof method to establish the purity of gold. Co-ordinate Bench of Kolkata in the case of Ram Charan Soni Vs Commissioner of Customs (Prev.), Patna [2001 (136) ELT 811 (Tri-Kolkata)] held that assay of the gold in question, it is noticed that the same was got done by a Goldsmith by touchstone method. The caratage of the gold indicated by him is only approximation and cannot be said to be a definite finding. 17. Learned Counsel for the appellant also relies on the Co-ordinate Bench order in the case of Commissioner of Commissioner of Customs (Preventive) Vs Baja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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