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2020 (9) TMI 134 - AT - CustomsAbsolute Confiscation - Gold - old and used Mobile Phone - Indian Currency - Claim of innocence and bonafide - cross-examination of witnesses - Section 108 of the Customs Act, 1962 - HELD THAT:- The authorities below proceeded on the basis of assumption of recovery of gold from the possession of the appellant. The appellant wanted cross-examination of the witnesses named in the BSF Seizure Memo, which has not been granted. The factum of recovery as has been mentioned in the BSF Seizure Memo and the statement of the appellant contained in the said Memo has been disputed by the appellant. Before the Customs Authority while giving statement under Section 108 of the Customs Act, 1962, the appellant in his statements dated 04-04-2016 and 05-04-2016 repeatedly stated that he is not involved in any illegal smuggling activity. He did not know any person whose names are appearing in the BSF Seizure Memo. Recovery of the gold from the appellant has not been proved and hence, he was not required to discharge the burden under Section 123 of the Customs Act, 1962. As there is no claimant of the gold, the confiscation of gold handed over by the BSF Personnel to the Customs Authority is justified. Regarding seizure and confiscation of Mobile Phone and Indian currency, since the illegal importation of gold by the appellant has not been proved, the confiscation of the said old and used Mobile Phone valued at ₹ 200/- and Indian currency of ₹ 6,000/- cannot be made. Adjudicating Authority proceeded on the basis of probability that the Indian currency may be the advance received for smuggling of gold. The learned Commissioner did not give any finding on this point but upheld the confiscation - Appeal allowed - decided in favor of appellant.
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