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2016 (9) TMI 1169 - HC - CustomsConfiscation of seized gold under Sections 111(d) and 111(p) of the Customs Act, 1962 - imposition of penalty under Section 112(b) of the Customs Act, 1962 - contravention of the provisions of Section 11 of the Customs Act, 1962 read with Section 3(1) of the Import & Export (Control) Act, 1947 - foreign marked gold weighing 19831.805 gms - import of gold prior to or after prohibition - prohibition in import of gold bars vide notification dated 25th of August, 1948 - whether the gold bars acquired before of after prohibition and is seizure and confiscation of gold bars justified if acquired after issuance of prohibition notification? Held that: - though the initial onus was on Revenue to prove the illegal import of gold and that such illegal import stand established when almost 20 Kg. of gold with foreign marking was confiscated in the year 1950. Since the gold was seized in the year 1950, it would be believed to have been imported soon before that as such gold imported would not be kept as such for a long period as alleged that it was imported between the years 1941 to 1949. In fact, the prohibition of import of gold came into force on 25th of August, 1948. Therefore, for more than two years, it is unbelievable that imported gold will be retained as such. Such stand of the Revenue has to be examined keeping in view the stand taken by the assessee that he purchased the gold when there was no prohibition and also stated that he purchased it from Reserve Bank of India through brokers. The assessee has failed to discharge the special fact within his knowledge as to when the gold was purchased and through whom the purchase of the gold was made. To avoid the rigour of prohibition, the onus was on the respondent being a fact within his special knowledge, thus, in terms of Section 106 of the Evidence Act, the onus was on respondent and thereafter his wife to prove that the gold imported is prior to prohibition vide notification dated 25th of August, 1948 and or has been purchased from the Reserve Bank of India. - there is no proof of any of these facts - learned Tribunal erred in law in holding that mere assertion that gold has been purchased cannot partake the character of proof of legal purchase. Seizure and confiscation of gold bars justified - petition disposed off - decided in favor of Revenue.
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