9911796707
TMI Blog1981 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Government in its revisionary jurisdiction under Customs Act, 1962 (Vide order Nos. 35A/86 and 38A-39A/86 dated 22 28-10-1986). 2.At the outset it may be stated that gold seized in this case having already been confiscated, both under the Customs Act, and Gold `Control' Act (as it was in operation at that time) and the applicant having clearly mentioned in the revision application that he "had no connection whatsoever with the said gold" (para 3 of the revision application) it is not open for him to now claim release of gold (as requested in the written submissions filed at the time of personal hearing held on 18-9-1993). That he was not concerned with gold had been his stand even before the lower authorities. The only question f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (Section 120) is an enabling provision of law for confiscation notwithstanding a change in form. Confiscation takes place under Section 111(d) of Customs Act, 1962 [N. Palaniswami v. Collector of Central Excise 1987 (29) E.L.T. 267 (T) ]. What is the material question in this case, therefore, is not as to whether the gold had particular markings of an Indian name, but whether the applicant has proved by discharging the onus under Section 123 of the Customs Act, 1962 which, as we will see, has been invoked properly in this case, that the gold was not smuggled. 6.The presumption (that the goods are smuggled) under Sec. 123(1) of the Customs Act, 1962 requires satisfaction of the following four conditions :- (i) That there should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted for bringing in smuggled gold and also identity of the carrier viz. his brother-in-law. Acting on this specific information the officers had acted with prior reasonable belief that gold was smuggled. 10.Actually it is not always necessary that there should be a definite information in every case having a nexus to the act of smuggling before the officer could entertain a reasonable belief that the goods were smuggled goods (though in this case as stated above such information was there). The receiving of definite information with regard to the smuggled goods might be one of the sources for entertaining a reasonable belief but that is not exhaustive. A reasonable belief could be entertained even on other grounds depending upon the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the melter did not have any gold control liecence and was thus indulging only in illicit gold which itself speaks volumes of his role. 13.Another important plea raised by the learned counsel during the course of personal hearing was that provision of Section 123 ibid could not have been invoked in the instant case because the seizing officer had described the gold as "yellow metal appears to be gold"; that this itself showed that the seizing officer were not sure of what they had seized and, therefore, it cannot be said that they had reasonable belief at the time of seizure, this plea is not well founded. The reasonable belief envisaged in Section 123 ibid is a belief that the goods under seizure are smuggled and not a belief that go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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