TMI Blog2004 (11) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... d therein on the appellants. 2. The learned Counsel has contended that no presumption under Section 123 of the Customs Act that gold biscuits in dispute recovered from Sitaram, appellant on 17-1-98 were smuggled by him or any other appellants from a foreign country to India, as the recovery was effected by the police in the first instance during the course of checking of Bus in which Shri Sitaram was travelling in the area of Ghaziabad and which the police later on, handed over to the Customs officers on the following date i.e. 18-1-98. Therefore, the burden was on the Revenue to prove the smuggled nature of the gold biscuits but has failed to discharge this burden. He has also contended that the appellants have produced ample evidence on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, no presumption under Section 123 of the Customs Act about the smuggled nature of the seized gold biscuits could be legally drawn in view of the law laid down by Supreme Court in the case of Gian Chand v. State of Punjab [1983 (13) E.L.T. 1365 (S.C.)] which has also been followed by the Tribunal in A.K. Hamsa Mohideen v. CC Chennai [2004 (171) E.L.T. 327] and Ram Lubhaya v. CC, New Delhi [2002 (147) E.L.T. 807] that in such cases the burden would be on the Customs authority to prove the smuggled nature of the goods. But this burden in the instant case has not been discharged by the Revenue for having failed to produce any evidence. Rather the appellants have produced documentary evidence to show that the seized biscuits were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort house and Globex Export Pvt. Ltd. These facts also find mention in the show cause notice. Moreover, both the said firms had also admitted the sale of the biscuits to M/s. M.S. Chain in their communication to the customs authorities and even furnished the proof of payment of customs duty in respect of those biscuits. The Revenue had not disputed the correctness of their communication. Both the said firms had legal acquisition, possession of the biscuits for having imported on payment of duty and as such, were competent to sell the same. That being so, the purchase of the biscuits by Kamal Kumar, appellant through his employee Sitaram, appellant could not be said to be illegal or unauthorized. Therefore, the seized gold biscuits could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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