TMI Blog2006 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... kers at Kurnool and Hyderabad for safe custody by Smt. L. Vijaya Lakshmi, daughter of Smt. Sumitra Devi with the consent of Shri L. Eswar Reddy, Son-in-law of G. Sumitra Devi and husband of Smt. L. Vijaya Lakshmi. The rest of the gold under seizure was gifted by Smt. Sumitra Devi to her daughter-in-law Smt. G. Sudha Madhuri, wife of Shri G. Pratap Reddy (son of Smt. G. Sumitra Devi) who in turn kept in the bank locker of Smt. L. Vijaya Lakshmi. The Adjudicating Authority has not accepted the above version. According to the Adjudicating Authority, the defence of the notice is totally fabricated. In our view, since the initial burden to prove that the goods are smuggled is on the Department's, the department has a responsibility to come o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 111(d) and 111(o) of the Customs Act, 1962 read with Section 11 of the Customs Act, 1962 and Section 3(3) of the Foreign Trade (D R) Act, 1992 and for imposition of penalty under Section 112 read with Section 114A of the Customs Act, 1962 for acquiring and possessing the FMG biscuits which they knew were liable for confiscation under Section 111 of the Customs Act, 1962. The Adjudicating Authority held that the appellants have totally failed to discharge the burden cost on them under Section 123 of the Customs Act to prove that the gold under seizure was not smuggled goods. Hence, he passed the impugned order confiscating the gold valued at Rs.13.98 lakhs absolutely. Furhter he imposed a penalty of Rs.2,00,000/- on Shri L. Eswar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nges the character of the notice entirely. As per the Customs Act, the Corrigendum can be issued only for arithmetical errors and it cannot entirely change the character of the original document. He submitted that in cases where the goods are initially seized by the police and later handed over to the Customs authorities Section 123 of the Customs Act is not applicable. He relied on the following case laws. (i) Naveed Ahmed Khan v. CC, Bangalore - 2005 (182) E.L.T. 494 (Tri-Bang.) (ii) Tulsi Das Agarwal v. CC, Kanpur - 2003 (158) E.L.T. 725 (Tri.-Del.) (iii) Jitendra Pawar v. CC, Raipur - 2003 (156) E.L.T. 622 (Tri.-Del.) (iv) A.N. Agarwal v. CC, Kanpur - 2003 (157) E.L.T. 274 275 (Tri.-Del.) (v) Ram Lubhaya v. CC, New Delhi - 2002 (147) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the goods were seized from the Customs and not the date on which the ACB seized them. In the present case, the Customs seized the goods on 2-6-97 and the Show Cause Notice was issued on 7-11-97 this is within the time limit of six months. Even the corrigendum issued on 1-12-1997 is within the time period allowed by law. Therefore, he said that there is no question of Show Cause Notice being barred by limitation of time. 7. We have gone through the records of the case carefully. The Tribunals in a large number of cases have held that Section 123 is not applicable when the offending goods are seized by the police and handed over to the Customs. If the above ratio is followed in the present case, there is no justification for holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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