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2021 (12) TMI 632 - AT - CustomsSmuggling - Gold - confiscation u/s 111(a) and 111(d) read with Section 120 of the Customs Act, 1962 - confiscation of the goods of no commercial value under Section 119 - penalties - burden of proof - HELD THAT:- There are no hesitation in concluding that the seized gold is of foreign origin and the DRI officers had a reasonable belief that it was smuggled and has correctly been seized. Neither the person from whom the gold was seized, i.e. that Shri Sathyanarayana nor the alleged owner of the gold Shri Manda Ramu, could discharge the onus of showing that it is not smuggled gold. Much emphasis has been laid in all appeals on the fact that the pieces of gold which have been seized had no foreign markings. Be that as it may, lack of foreign markings does not change the status of the goods under Section 123. The reasonable belief has to be examined in the factual matrix of each case. In this case, the purity of the gold, the lack of invoice, the payment for the gold in cash concealed in a jacket and in which the gold was also being carried all add up to give reasonable belief to the officer. The original and duplicate copies of the invoice, unsigned, prepared by Shri Balaji in favour of Shri Manda Ramu do not inspire any confidence because if it was an invoice issued for sale it should have been sent with the goods after signature which is not the case. In fact, the initial statement Shri Balaji clarified that he prepared the invoice after receiving the same information about the seizure of gold. This is nothing but an attempt to cover up. The other invoice showing purchase of 2000 gm of gold also does not support the appellant’s case because the purity of the gold was different. Appeal disposed off with following order:- (a) Confiscation of 3.158 kg. of gold valued at ₹ 94,61,368/- under Section 111(a) and (d) read with Section 120 of the Customs Act is upheld. (b) Confiscation of the goods of no commercial value used for concealment the above gold is upheld under Section 119. (c) Confiscation of 173.400 gm of pieces of gold bars is set aside. (d) Confiscation of 70.300 gm. of foreign marked coins under Section 111(a) & 111(d) is upheld. (e) Confiscation of Rupees Ninety lakhs under Section 121 of the Customs Act is upheld. (f) Penalty upon Shri V. Sathyanarayana under Section 112(b) of the Customs Act is reduced to Rupees One lakh. (g) Penalty of Rupees Twenty lakhs under Section 112(b) of the Customs Act Shri Manda Ramu is upheld. (h) Imposition of penalty under Section 112(b) of Rupees Twenty lakhs upon Shri P. Balaji is upheld. (i) Imposition of penalty of Rupees Five lakhs on Shri K. Srinivasulu is set aside.
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