TMI Blog2003 (3) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... -. His statements were recorded on 10-3-96 and 11-3-96. He deposed, that he had purchased foreign marked gold biscuits on 9-3-96 from one Rajesh and that he owned a sum of Rs. 1.8 crores as payment therefor. He had already paid Rs. 1.3 crores in the morning and was possession of the remainder currency when he was intercepted. 2 Telephone numbers were given by him on which he would contact Rajesh. The numbers belonged to some shops where the persons did not know the person called Rajesh. The scooter was found registered in the name of one Mohamed Hanif Qureshi who was also not found. The scooter was claimed to have been purchased by the Appellant through one Mukesh who was also not located. 2. Show Cause Notice was issued alleging that imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation of the currency under Section 121 of the Act, he stated that for such confiscation to be adjudged at first it has to be established that some goods were smuggled, that those very smuggled goods had been sold and that the sale has been made with conscious knowledge that the goods are smuggled goods liable to confiscation. He relied upon Tribunal Judgment in the case of R. Ramachandra v. Collector reported in 1992 (60) E.L.T. 277 which was followed by the Tribunal in the earlier cited Judgment. He stated that there was no evidence that any gold has been smuggled and that the smuggled gold had been sold. Since the Appellant has retracted his statements there was no evidence establishing the allegation that the currency was sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign exchange. It was also noted that there was no restriction on resale of such gold in India after the importation. In this situation the Tribunal held that where the Government had relaxed the prohibition on import of gold and had allowed free its resale, it was unreasonable for a holder in due course to be asked to prove the legal importation thereof. 9. The ratio of this judgment would apply to the present case in two ways. 10. Firstly in the face of the availability of very substantial foreign exchange in the country if a particular time, it would be unreasonable to impose a stipulation that any holder thereof should prove the licit of currency with specific authorization from the RBI. In the present case since provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith corroborative evidence. But there is no such evidence in this case. The Commissioner has made a very peculiar observation in his order which reads as below : - Clandestine activity like smuggling are carried out under a cloak of anonymity, false names, without the aid of records or accounts and normally no evidence of proof would be left behind by the experienced operators for the Customs Deptt. to uncover and prove the charge condusively. Who are the clients of Shri Jain, from whom he purchased the gold and to whom he sold the gold etc., are exclusive privileged information which are solely in the knowledge of Shri Jain. Unless he choses to open up and disclose the facts, the Customs or D.R.I. cannot uncover. After withholding all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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