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2022 (2) TMI 1134 - HC - CustomsSmuggling - Gold Biscuits of Foreign Origin - production of evidence evidencing the legal import of gold or not - statements given under Section 108 of the Customs Act, 1962 not considered - Revenue has not established that the seized goods were smuggled ones and illicitly imported into India - burden of proof - seizure was made by Police without any evidence - HELD THAT:- This Court finds that as regards Mr. R. Kailash, though he has given a statement under Section 108 of the Customs Act, admitting that he has no duty paid receipts for the gold biscuits found in his possession, he rebutted the same by producing baggage receipts to prove that the gold biscuits and ingots seized from him have been brought into the country by paying respective charges. Though under Section 123 of the Customs Act the initial burden to prove that the gold seized from the possession of the accused was not smuggled goods lies on the person in whose possession the gold was seized, but once the accused produces the receipts for the import of gold, then the burden shifts to the Department and the Department will have to prove that the baggage receipts do not pertain to the gold which was found in possession of the accused. Since no such evidence has been produced before the Tribunal or before this Court, this Court does not deem it fit and proper to interfere with the findings of the CESTAT in the case of Mr. R. Kailash in giving him relief and setting aside the order of penalty confirmed by the Commissioner. The Special Court has gone into the evidence produced by the petitioners and has acquitted them by holding that they were not holding illicit gold in their hands. Since the gold found in possession of Mr. C. Srinivas was not found to be not of Indian origin, it cannot be said that he has committed any offence. Therefore, the decision given by the Tribunal setting aside the penalty order against Mr. C. Srinivas is upheld. The Appeals filed by the Department are accordingly dismissed.
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