TMI Blog2008 (12) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. The Departmental Authorities have found the pleas taken by the Appellant to be false and the same coupled with the clear foreign origin of the goods go to prove the smuggled nature of the impugned gold quite independent of the provisions of Section 123 of the Customs Act, 1962 – acquittal of accused before the trial court due to fault of the department can not be taken a plea to benefit the accused against the penal provisions. - C/105/2008 - A-1372/KOL/2008 - Dated:- 22-12-2008 - Dr. Chittaranjan Satapathy, Member (T) Shri N.K. Chowdhury, Advocate, for the Appellant. Shri A.K. Sharma, JDR, for the Respondent. [Order]. - Heard both sides. 2. Shri N.K. Chowdhury, learned Advocate appearing on behalf of the Appellant ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Departmental Authorities were wrong in absolutely confiscating the same. Even if the gold had to be confiscated, it being a restricted item under the Import Policy, the Appellant should have been given an option to redeem the gold on payment of redemption fine. 7. Shri A.K. Sharma, learned Departmental Representative (JDR) appearing on behalf of the Department states that the impugned gold was seized from the Appellant on 21-8-2000 subsequent to his apprehension by the Police at 1 O'clock on 20-8-2000. The manner in which the Appellant was carrying the impugned 9 (nine) gold biscuits each weighing 10 tolas taped to his feet inside the socks and shoes was highly suspicious and the statement which he gave before the Customs Authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter about 7 (seven) months. After giving the initial statement, there was no retraction by the Appellant immediately afterwards nor was there any allegation by him at that time that his initial statement was taken either by force, coercion or in any other illegal manner. 10. Ihave gone through the Order of acquittal dated 28-7-2003. The said Order acquits the Appellant on grounds such as non-appearance of the Departmental witness who was the complainant, non-production of the seized gold before the Court, non-production of the Report of the Mint before the Court etc. It is strange that the department did not take effective steps to prosecute the complainant before the trial Court. At the same time the appellant cannot take benefit of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the court. 12. The Departmental Authorities, in my view, have rightly relied on the statement given by the Appellant at the time of seizure under Section 108 of the Customs Act, 1962 which was untutored and given voluntarily apart from being contemporaneous. The gold seized bore foreign markings and were clearly of foreign origin. The information regarding acquisition of the same given by the Appellant could not stand scrutiny. The Departmental Authorities have found the pleas taken by the Appellant to be false and the same coupled with the clear foreign origin of the goods go to prove the smuggled nature of the impugned gold quite independent of the provisions of Section 123 of the Customs Act, 1962 as has been held in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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