TMI Blog2002 (8) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was intercepted while coming from his shop of gold ornaments. His personal search resulted in recovery of 11 pcs. of gold biscuits of foreign origin. The appellant in his on the spot statement admitted that the seized gold biscuits of foreign origin were delivered to him by two persons whose names and addresses were not known to him and the same were received by him without any valid documents. The said gold pieces on test reported the purity of the same to be 99.99. The Officers seized the gold biscuits under the provisions of Customs Act on a reasonable belief that the same were smuggled. The appellant was also arrested and produced before Chief Judicial Magistrate, who remanded him to the Jail Custody. He was at large on bail on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase registers for the period April, 1992 to December, 1992 along with telephone bill and the connecting documents and the cash book for the year 1992 to 1993 which he did not produce. Even during the subsequent period when he was summoned to do so, he did not produce any registers etc. M/s G. Seal Company was also interrogated wherein they admitted having sold the biscuits to the appellant in the year February, 1993. 2.3 On the above basis, the appellant was served with the show-cause notice proposing confiscation of gold biscuits and imposition of personal penalty upon him. The said show-cause notice culminated into an order passed by the Joint Commissioner confiscating absolutely the gold biscuits and imposing personal penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e smuggling of the gold biscuits by the appellant. Shri Mookherjee has also challenged the order on the ground that there is nothing on record to show that the officers who conducted the search have been specifically named by the Board or search authorization was given by him; that such officers were specifically empowered by the name for carrying out the search and seizure by the Board; that there is no recording of reasoning prior to conducting of such search thus making of search were illegal. That anything recovered on the basis of defective search is illegal and wrongful and the seized goods must be returned to them. In support of the above submissions, he has referred to some of the decisions of the Hon ble Supreme Court. He submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority as also the Commissioner (Appeals) has rightly held that the seized goods are not covered by the documents in question. He submits that the gold is a notified item under the provisions of Section 123 of the Customs Act, 1962 and as such the onus to prove that the same is legally imported into India lies upon the person from whose possession the same is seized. As regards the other issues about the authorization of the officers conducting the search, he submits that such point was never raised before the authorities below and as such, the appellant cannot argue on the same at this stage. In this view, submits the ld. SDR, that the appeal filed by the appellant is required to be rejected. 5. I have considered the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isper of fact in the said statement that the gold biscuits were purchased by him from M/s G. Seal Co. The said statement which is detailed, is written in the hand of the appellant and the bearing of the words Marzi Bina at the time of the statement will not make such statement as involuntary inasmuch as the said point was not examined by the adjudicating authority having not been raised before him. As such it cannot be said at this stage as to whether the said words were originally in the said statement or not. I also note that no such averment was made by the appellant before the ld. CJM, at the time of making of bail application. If the appellant was pressurised to give the statement, he was at liberty to bring the said facts to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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