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TMI Blog2003 (7) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... was brought on record. 3.The facts are not much in dispute. On 18-3-2000, the police officers of Rath (Hamirpur) conducted search of the residential premises of Shri Rakesh @ Kallu and effected recovery of 19 gold biscuits of foreign origin and Indian currency of Rs. 9,37,722/-. They, later on, informed the Customs Authorities and on receipt of the information, the Customs Officers took possession of the seized biscuits and the Indian currency on 31st March, 2002 after drawing proper Panchnama. At the time of recovery, the police also recorded statement of Shri Rakesh @ Kallu wherein he stated that the goods recovered belonged to Shri Tulsidas Agarwal, neighbour, who had kept the same with him due to security reasons. Thereafter, the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from M/s. Dhan Cholia Sons, Chandni Chowk, Delhi. 4.The Adjudicating Authority, however, did not accept the version of Shri A.N. Agarwal, and his father, Shri Tulsidas Agarwal, and ordered absolute confiscation of all the 19 gold biscuits by holding the same to be smuggled one, besides imposing penalty of Rs. 1 lakh each on them. 5.The present appeal, as observed above, was initially filed by Shri A.N. Agarwal, who had claimed 7 biscuits and on whom penalty of Rs. 1 lakh had been imposed by the Adjudicating Authority. After his death, his widow has been brought on record being his heir and entitled to claim the seized biscuits. 6.I have heard both sides and gone through the record. The learned Counsel has contended that since the recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set aside. 8.On the other hand, the learned JDR, has reiterated the correctness of the impugned order. 9.I have heard both sides and gone through the record. It remains undisputed that recovery of the gold biscuits in question was effected from the house of one Shri Rakesh @ Kallu by the police. The recovery effected was in all of 19 gold biscuits of foreign origin, besides the Indian currency. But he disclosed that these gold biscuits belonged to his neighbour, Shri Tulsidas Agarwal, father of Shri A.N. Agarwal (deceased). Even, Shri Tulsidas Agarwal, in his statement recorded on 5-9-2000 claimed his personal ownership of 12 biscuits which he purchased from M/s. Brijwasi Distributors and produced the copies of the invoices. Regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm against payment, could not be brushed aside, rather it should have been accepted by the Adjudicating Authority. 10.Moreover, there is not an iota of evidence on the record to suggest if the gold biscuits in question were smuggled goods. No presumption regarding their smuggled character could be drawn in view of the ratio of the law laid down by the Apex Court and then followed by the Tribunal in the above referred cases. It was for the Department to prove the smuggled character of the seized gold biscuits, but they had failed to do so. Much importance could not be attached to the fact that there was a difference of 285.07 gms, in actual weight of the 7 gold biscuits claimed by Shri A.N. Agarwal and the weight recorded in the invoices. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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