TMI Blog1995 (1) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... directed against the order of the Collector of Customs, Hyderabad, dated 28-7-1992. 2. Shri Satish Sunder, the learned Counsel for the appellant at the outset submitted that the appellant is not claiming the Indian currency of Rs. 30,700 and 15 Tolas of gold bars under absolute confiscation under the impugned order but is contesting the impugned order only with reference to the sustainability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court in the case of Nathella Sampath Chetty and Another v. Collector of Customs, reported in AIR 1959 Madras 142 and the Division Bench ruling of the Gujarat High Court in the case of Assistant Collector of Customs v. Mukhjusair, reported in 1970 Cri L.J. 1306 (Vol 76 OM 340). The learned Counsel further urged that the appellant wanted to cross-examine the mahazar witnesses to probabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below : ********** 6. The Division Bench of the Gujarat High Court in the case cited supra referring to the ruling of the various High Courts and the Supreme Court has held against the applicability of presumption of Section 123 of the Customs Act, 1962 in respect of seizure by the Police Officers and the relevant portion of the ruling of the High Court is reproduced below : .... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case the presumption under Section 123(1) could not help the prosecution and the prosecution must prove the essential ingredient of the offence by proving that the gold in question was smuggled gold . 7. When Section 123 is not applicable, it is for the Department to prove that the goods are of foreign origin and were smuggled by the appellant. In the present case when the appellant has disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination of the mahazar witnesses should be acceded to. In this view of the matter, without expressing any opinion on the merits of the issue, the impugned order is set aside and the matter remanded to the original authority for reconsideration of the issue in accordance with law after affording the appellant a reasonable opportunity to cross-examine the mahazar witnesses. Ordered accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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