TMI Blog2019 (10) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... d purchased the gold - There is no explanation forthcoming as to why, if, in fact, the gold had been purchased by the appellant within India, the aforesaid invoices were not available with the respondent till the stage of appeal. The belated explanation of the respondent, at the stage of appeal, that the gold had been sold to him in India, and was intended to be given to some undisclosed person in Mumbai, is too facile to merit acceptance - We are, therefore, persuaded to believe the un-retracted confessional statement of the respondent under Section 108 of the Act that, in fact, he had smuggled the gold from Dubai. The seized goods are smuggled goods - the substantial questions of law are, therefore, answered in favor of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he was about to board Train No. 12172 at Hazrat Nizamuddin Railway Station. The printout of a ticket of Indigo Airlines, in the name of the respondent, for Flight No. 6E-24, of the same day, i.e., 1st February, 2013, was also seized, whereunder the respondent had travelled from Dubai to New Delhi, along with the Boarding Card for the said flight. 3. The seizure was effected under Panchnama. The statement of the respondent was, thereafter, recorded under Section 108 of the Customs Act, in which he admitted that the seized gold jewellery had been brought, by him, from Dubai, concealed in his underwear. He further deposed that the jewellery had been given to him in a shop by two persons namely, Imtiaz and Azim, who worked as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the seized jewellery, the Commissioner (Appeals) held that the allegation of smuggling of the seized gold could not be fastened, on the respondent, solely on the basis of the confessional statement recorded from him, in the absence of any corroborative evidence. It was further observed, by the Commissioner(Appeals), that the seizure of the gold from the respondent, at the Hazrat Nizamuddin Railway Station, even if viewed in conjunction with the fact that the respondent had, admittedly, travelled from Dubai to New Delhi on the same day, i.e. 1st February, 2014, could not lead to any incontrovertible finding that the gold jewellery had, in fact, been smuggled by the respondent, or even carried by him, from Dubai to New Delhi. The Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold by the respondent. 11. Aggrieved thereby, the Revenue has preferred the present appeal, before this Court under Section 130 of the Customs Act. 12. We have heard Mr. Amit Bansal, learned Senior Standing Counsel for the appellant and Mr. Pramod Kumar Sharma, learned counsel for the respondent, at considerable length. 13. In our considered opinion, it is not possible to sustain either the Order-in-Original of the Commissioner (Appeals), or the impugned final order, dated 15th May, 2018, passed by the CESTAT. 14. Gold is notified under Section 123 of the Customs Act, which reads thus : 123. Burden of proof in certain cases.- (1) Where any goods to which this section appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, predictably, sought to adopt the latter stance, his statement, under Section 108 of the Act, confessed that he had, in fact, smuggled the gold from Dubai to New Delhi by air, on route to Mumbai where it was to be delivered. 19. The said statement, which is admissible in evidence , was never retracted by the appellant. Neither is there any evidence to indicate that the statement was recorded under coercion. 20. Though the appellant maintained that he had purchased the gold within India, the identity of the purchaser remain undisclosed during investigation as well as during adjudication, and it was only at the stage of appeal, before the Commissioner (Appeals) that the appellant belatedly produced docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional statement of the respondent under Section 108 of the Act that, in fact, he had smuggled the gold from Dubai. 28. Close on half a century ago, a three-Judge Bench of the Supreme Court held, in Balumal Jamnadas Batra v. State of Maharashtra, 1983 (13) E.L.T 1558 (SC) that, in the case of goods, which were notified under Section 123 of the Act, the benefit of doubt would enure in favour of the accused, if he could prove that he was an innocent receiver of smuggled goods or, needless to say, in licit possession of the goods seized from him. 29. The Supreme Court, in that case, held that the very appearance of the goods, and the manner in which they were packed, indicated that they were newly manufactured and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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