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2020 (3) TMI 774 - HC - CustomsSmuggling - Bangladesh currency taka - Whether on the facts and in the circumstances of the present case, the Tribunal has proceeded on irrelevant considerations and has erred in passing the impugned order dated 28-4-2017 and in approving the order-in-appeal dated 31-5-2016 and order-in-original dated 7-12-2015 without examining the entire record? - HELD THAT:- On perusal of sub-section (1), it is explicit that when any goods to which the Section applies are seized under the Act under a reasonable belief that they were smuggled goods, the burden of establishing that they were not smuggled goods, shall lie upon the person from whose possession the goods were seized. Sub-section (2) has applicability insofar as gold and manufactures thereof are concerned and to watches as well. However, the Central Government has been empowered to extend its applicability to any other class of goods by issuance of notification in the Official Gazette in that behalf - The Indian currency seized in the present case falls outside the ambit of Section 123 of the Act not being a notified item. However, by virtue of Section 121 of the Act, it is still liable to be confiscated provided it is as a result of sale proceeds of smuggled goods. In such a situation, the presumption contained in Section 123 of the Act would not be available to the Revenue which can be relied upon. Even though the provisions of the Evidence Act, 1872 (In short, the 1872 Act) are not applicable to proceedings under the Act, yet the broad principles and rule of evidence contained in Section 101 of the 1872 Act regarding ‘Burden of proof’ would place the initial burden on the Department to establish by producing material evidence that the Indian currency or the asset sought to be confiscated was a result of sale proceeds of smuggled goods. In the present case, the appellant from whose possession cash of ₹ 8,23,100/- was seized had by preponderance of evidence shown that partly the amount was for the purpose of discharging the loan which was taken by him from his father-in-law - In the absence of any material to substantiate the allegation of the Revenue, the Additional Commissioner of Customs (Preventive), the Commissioner (Appeals) and the CESTAT were not justified in upholding the order of confiscation of the amount of ₹ 8,23,100/- and imposition of the penalty in respect thereof. The substantial question of Law is answered in favour of the appellant and against the Revenue relating to seizure of Indian currency of ₹ 8,23,100/- - appeal disposed off.
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