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TMI Blog2019 (10) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CESTAT failed to appreciate that the onus of proving that the goods are not smuggled falls under the ambit of Section 123 and accordingly the burden of proving the fact that the goods are not smuggled and have been purchased locally shall be on the person from whose possession the goods were seized ?; iii. Whether the Ld. CESTAT failed to appreciate that the statement of the Respondent under section 108 of the Customs Act, 1962 was corroborated by circumstantial evidences viz travel ticket, boarding card, baggage tag, Railway tickets etc for reaching conclusion of smuggling of gold by him ?" 2. Four packets of gold jewellery, weighing 2.015 kgs and valued at Rs. 47,55,400/- allegedly concealed by him in his underwear, were seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Additional Commissioner, whereby the aforesaid seized gold jewellery, weighing 2.015 kg, was absolutely confiscated under clauses (d), (i) and (m) of Section 111 of the Act, and penalty of Rs. 25 lakhs was imposed on the respondent under Section 112 thereof. 6. The respondent appealed, against the said Order-in-Original, to the Commissioner of Customs (Appeal) (hereinafter referred to as "the Commissioner (Appeals)"). 7. Vide Order-in-Appeal, dated 9th March, 2015, the Commissioner (Appeals) allowed the appeal of the respondent, and, thereby, reversed the aforesaid Order-in-Original, dated 9th January, 2014 of the Additional Commissioner. 8. Observing that foreign markings were not contained on all the seized jewellery, the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confessional statement of the respondent. The CESTAT concurred with the observations, of the Commissioner (Appeals), that the fact of his having travelled from Dubai to New Delhi, on 1st February, 2013, when seen in conjunction with the fact of his having proceeded to the Hazrat Nizamuddin Railway Station, on the same day, did not necessarily prove that the gold, seized from the respondent, was, in fact, smuggled by him from Dubai. Inasmuch as the respondent had produced invoices, under which, purportedly, he had purchased the gold - which was subsequently seized - within India, the CESTAT held that the Revenue had been unable to conclusively make out a case of smuggling of gold by the respondent. 11. Aggrieved thereby, the Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncededly, the respondent had travelled from Dubai to New Delhi on 1st February, 2013. The gold was seized, from the possession of the respondent on the very same day, i.e. 1st February, 2013, from the Hazrat Nizamuddin Railway Station. 17. There could, therefore, be only one of two possibilities, i.e., either that the respondent had, in fact, smuggled the gold from Dubai, by air or that, as he sought to contend, the gold had been sold to the respondent within India, after he had left the airport. 18. Though the 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 deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licit acquisition of the gold jewellery seized from his possession. The quantity seized was not-miniscule, but was over two kilos. 26. 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. 27. 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. 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts, cumulatively seen, in our view, clearly indicate that the seized gold was smuggled. 32. We are of the opinion that the respondent cannot be said to have successfully discharged the burden, cast on him by Section 123 of the Act, to prove licit possession of the seized gold. 33. In view of the aforesaid provisions of the law and the facts and the judicial pronouncement, the respondent could not explain the possession of the gold which is 2.015 kgs and looking to the statement under Section 108 of the Customs Act, 1962 of the respondent, also no explanation has been given as to who has given the gold to the respondent when the goods were seized. 34. The substantial questions of law, as framed by this Court on 9th August, 2018, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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