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2024 (4) TMI 1016 - CESTAT KOLKATASmuggling - Confiscation of Silver Jewellery, Silver Boondi & Indian Currency - third country origin - Penalty - recovery of contraband goods from the house and Gaddi - Burden of proof - presumption u/s 123 - HELD THAT:- We find that the search made on the basis of that respondent is dealing with the contraband goods and during the course of investigation, no contraband goods were recovered. The respondent being a trader in silver ornaments/silver boondi, was searched and 79.58 kgs. of Silver Jewellery, 50 kgs. of Silver Boondi, Indian Currency amounting to Rs. 79,00,000/- were recovered. These were presumed by the Revenue and these are the third country origin, but no such evidence has been produced by the Revenue to allege that these are third country origin. In fact, during the course of investigation, it is a fact on record that boondi silver and silver jewellery were recovered from the shop of the respondent. So, the question arises that in the absence of any seizure of Port or Airport or not having any foreign markings on the goods seized from the respondent, how the officers came to the conclusion that the goods are third country origin goods. Therefore, first, onus on the Revenue is to make a reasonable belief that the goods are of third country. Admittedly, no such evidence has been produced by the Revenue to allege that to make a reasonable belief, the goods are of third country origin. In the absence of that, the goods in question cannot be confiscated. Furthermore, the confiscation of Indian Currency recovered from the respondent was not proved by the Revenue that the same is sale proceed of the goods of third country origin. In that circumstances, the Indian Currency cannot be seized or confiscated. We do agree with the observations made by the Ld. Commissioner (Appeals). Thus, we do not find any infirmity in the order passed by the Ld. Commissioner (Appeals) and do agree with the same. Hence, we do not find any merit in the appeal filed by the Revenue. Accordingly, the same is dismissed.
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