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2006 (1) TMI 320 - AT - CustomsConfiscation of goods - Smuggled gold - Penalty - burden to prove - HELD THAT:- The appellants have stated that the gold under seizure was actually purchased by Smt. G. Sumitra Devi, mother of L. Vijaya Lakshmi from one Shri P. Krishnan who had bought it when he came to India from Singapore on 14-9-96 and from Shri M. Nagaraj, who had bought it from MMTC Ltd. Secundrabad on 9-4-96. The baggage receipt and the original invoice were produced. A part of the gold purchased by G. Sumitra Devi was kept in bank lockers at Kurnool and Hyderabad for safe custody by Smt. L. Vijaya Lakshmi, daughter of Smt. Sumitra Devi with the consent of Shri L. Eswar Reddy, Son-in-law of G. Sumitra Devi and husband of Smt. L. Vijaya Lakshmi. The rest of the gold under seizure was gifted by Smt. Sumitra Devi to her daughter-in-law Smt. G. Sudha Madhuri, wife of Shri G. Pratap Reddy (son of Smt. G. Sumitra Devi) who in turn kept in the bank locker of Smt. L. Vijaya Lakshmi. The Adjudicating Authority has not accepted the above version. According to the Adjudicating Authority, the defence of the notice is totally fabricated. In our view, since the initial burden to prove that the goods are smuggled is on the Department's, the department has a responsibility to come out with positive evidence and establish the source of procurement of the gold, especially when the explanation of the appellants is not accepted. The department has failed to discharge its owners u/s 123 of the Customs Act. Therefore, on this point alone the order-in-original cannot be sustained. The other pleas of the appellants have not been considered. Hence, we allow the appeal with consequential relief.
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