TMI Blog2020 (1) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act, 1962, provides in respect of the gold and some other notified goods, if the seizure was under reasonable belief, that they are smuggled, the onus of proving that they are not rests upon the person from whom the goods were seized. Reasonable belief - HELD THAT:- The seizure was based on the information that they had received and that the documents pertaining to the gold, were not found in shop at the time of seizure. There is nothing on record to suggest that the pieces which were seized had any foreign markings. Under these circumstances, we find that there was no reasonable belief for the seizure - Further, we find that the appellant had produced various documents to show how he came in the possession of gold and these document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, are sustainable. 3. Brief facts of the case are that the Officers of P I Branch at Kolkata Customs, received information that smuggled gold was being transacted at M/s. Shree Ganesh Refinery, 7, Kannulal Lane, Kolkata and searched the premises in the presence of the appellant and two independent witnesses. The appellant is the owner of the shop premises, which was searched. During search, 9 (nine) cut pieces of yellow metal believed to be gold of foreign origin weighing 1718 grams and Indian Currency amounting to ₹ 18,00,000/- were seized. It was believed that the gold was of foreign origin and the Indian Currency was the sale proceeds of smuggled gold. Statement of the appellant was recorded on 3-7-2014, in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 18,00,000/- seized from the appellant under Section 121 of the Customs Act, 1962 ; (c) Imposed a penalty of ₹ 6,00,000/- on the appellant under Section 112 of the Customs Act, 1962. He refrained from imposing any penalty under Section 114AA of the Customs Act, 1962, holding that he could not find any conclusive evidence put forward by the investigation to hold that the documents furnished by the appellant during investigation were false or fabricated. On the question of discharging his onus under Section 123 of the Customs Act, 1962, he recorded as follows : Shri Madhukar Sonaba Bhagat has tried to discharge his onus in respect of Section 123 of the Customs Act, 1962 by submitting claim petition alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The entire demand should fail on this ground alone. Once the question of gold smuggling is not proved, the seizure of any Currency holding it out to be proceeds of smuggling under Section 121 also does not sustain. 6. He would further argue that although the gold was seized without reasonable belief, the appellant has discharged his onus by producing various documents and giving details of his transactions with various other Companies. In the impugned order, the Ld. Commissioner, himself, confirms that there is no evidence that any of these documents were fabricated. He further draws attention to the Bench to the fact that the Department searched the premises of various customers and had found nothing incriminating as has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides and perused the records. 11. The allegation is that the appellant has smuggled gold, which is liable for confiscation under Section 111 of the Customs Act, 1962. The gold was not seized while it was being smuggled either at the Port or at the Airport. It was seized from his shop in the City. In such cases, Section 123 of the Customs Act, 1962, provides in respect of the gold and some other notified goods, if the seizure was under reasonable belief, that they are smuggled, the onus of proving that they are not rests upon the person from whom the goods were seized. The first question is whether there was reasonable belief. In this case, we find that the seizure was based on the information that they had received and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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