9911796707
TMI Blog2014 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below, for the sake of brevity:- That on 16.6.1999, at about 1850 hours, officials of Customs of Gorakhpur Division, on the basis of the alleged specific information, intercepted Maruti Van No. UP-53D-2052 near Munshi Prem Chandra Park. In the car, there were two occupant i.e. the appellant and Shri Sanjay Soni. It is alleged that the appellant was searched and seven big size and two small size pieces of gold were recovered from the front pocket of the appellant's pant and the same were of 559.700 grams and totally valued at Rs. 2,23,000/-. It is further alleged that the pieces of hammered to erase the foreign origin marking and one piece showed explicit Chinese origin marki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Shara, the owner of Dhan Cholia Sons was also recorded and he has confirmed that he had sold the said gold to the appellant vide Bill No. 4 and 11 pieces were sold to him and only one bill was issued on the said date. A copy of the receipt is enclosed. Different findings were given and the gold was seized. A show cause notice was issued to the appellant, calling upon as to why the seized gold should not be confiscated under Section 111 (d) and 120 of the customs Act and why the Maruti Van should not be confiscated under Section 115 (2) of the Customs Act, 1962, and why the penalty should not be imposed under section 112 (b) of the Customs Act. Panchnama, statement of the applicant and Sanjay Soni and other documents were relied upon. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epal. The petitioner did not make any such confession that he had hammered the gold by removing the foreign markings. The possession of the gold, even if it was smuggled, was not by itself an offence under the Customs act, 1962, on which it could be confiscated under Section 111, unless it was established by evidence that the gold was smuggled and brought by the appellant, or it was smuggled and brought by him through the commission agent. The appellants thus cannot be said to have made any such confession, which may have incriminated them, and which they subsequently retracted on 3.8.1999 on 5.8.1999 respectively, in their statements under Section 108 in pursuance to summons issued to them. The appellant no.1 had changed his statement, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld ) from whose possession the gold was seized, and option to pay fine, which shall not exceed the market price of the goods confiscated, in lieu of confiscation. Such market price has to relate to the date, when the goods (gold) was confiscated. 4. As is seen, the Revenue's entire case is based upon the initial statements which were retracted subsequently, by rejecting the appellant's stand of purchase of gold from M/s. Dhancholia and Sons. The prop. Of the said M/s. Dhancholia had also deposed to have sold the gold to the appellant. As such, by producing the said evidence, the appellant has discharged the initial burden of proof. If the revenue seeks to establish the said stand as false, it is for them to produce the evidence. Mere dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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