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2024 (5) TMI 834 - CESTAT ALLAHABADSmuggling - seizure of foreign origin gold bars - Confiscation - Penalty - No document regarding sale purchase/transportation - Violation of the provisions of Section 7 (1) (c), Section 11, Section 46 of the Act, read with the Section 123 - burden or onus to establish the smuggled nature of gold - HELD THAT:- We find that the impugned gold intercepted, initially taken possession by the officer of GRP and then handed over to Customs. Admittedly, the gold did not have any tell-tale foreign marking and it was merely accused that the markings were removed to hoodwink investigation. The place of seizure is not in Customs area. Hon’ble Supreme Court in the case of Gian Chand & Ors 2013 (7) TMI 1155 - SUPREME COURT, wherein in case of seizure by the Police and thereafter the possession was shifted to the Customs Officer, held that the pre-requisite of seizure is not satisfied. Accordingly, it is held that the circumstances as required under the Customs Act are not satisfied and consequentially the whole burden or onus to establish the smuggled nature of gold is on the Revenue. In addition to the above, fact remains that the gold did not have any foreign marking; Department under established that the same has been smuggled. The situation would certainly create reasons to believe that the impugned gold could be smuggled one, necessitated further prove. It does not constitute reasonable belief to seize the gold u/s 123 of the Act. Thus, we do not find any reasons to interfere with the impugned Order-in-Appeal passed by the learned Commissioner (Appeals) and accordingly, the same is sustained. The appeals filed by the Department are thus dismissed.
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