TMI Blog1980 (1) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... tatively of the view that the impugned order of the Board did not appear to be correct in law and had proposed to annul or modify the said order in exercise of the powers vested in it under Section 131(3) ibid. 2. M/s. Khettery's Jewellery and the other ten parties whose appeals had been allowed by the Board in the impugned order were all called upon by a notice dated 27-8-1979 to show cause to the Central Government why the impugned order of the board be not annulled or modified. All these 11 persons have since sent their written replies to the said show cause notice issued to them and as desired by them, they were also granted an opportunity of personal hearing. Advocate Shri S.K. Ray, Bar-at-Law represented all those persons in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned goods are smuggled goods and not the belief that the goods are such to which the provisions of Section 123 apply. When the goods are seized under the Act in the reasonable belief that they are smuggled goods it is only thereafter that the question arises on whom lies the onus of proving that the goods are not smuggled and it is on this subsequent stage that one has to ascertain whether the provisions of Section 123 apply to those goods or not. The Board was therefore wrong in holding that the seizing officer before seizing the goods should have also reasonable belief that the goods are such to which the provisions of Section 123 apply. In the view of Government, the reasonable belief is limited only to the belief that the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances available. The Board has fallen in error in not going into the substance of the matter and has superficially reached a conclusion that since the seizing officer has not indicated the definite nature of the goods on the seizure list the Board took the view that he probably did not entertain a reasonable belief that these were smuggled goods. The Board has perhaps fallen into error by interlinking the reasonable belief that the goods were smuggled with the question that such belief was in relation to goods to which section 123 applies. Government are of the view that the seizing officer has got to have a reasonable belief only that the goods are smuggled and not that they are goods to which the provisions of Section 123 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he chooses to record on the seizure memo but on the course of conduct of the officer and on several other attendant circumstances. In this case for instance the seizure was in pursuance of a definite information that the jewellery firm was having diamonds and gold which might have been smuggled. Reading the seizing memo in its entirety and keeping in view the fact that there was a definite information leading to the raid and the recovery of the goods in question, Government have no hesitation in holding that the seizing officer had a reasonable belief that the goods were smuggled and that being the position the goods which were so seized are subject to the provisions of Section 123 because these have been so listed for its application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e kept accounts of the acquisition of the diamonds in question as contemplated under the provisions of Chapter IVA of the Customs Act, Government accept the contention of the persons concerned since diamonds are not a notified item for the purpose of the provisions of Chapter IVA. 8. Government however observe that once the provisions of Section 123 are held applicable to certain goods, the burden of proving that the goods are not smuggled goods is on the person from whose possession such goods are seized and if any person other than the person from whose possession such goods are seized claims to be the owner thereof that other person has also to prove that the goods in question are not smuggled goods. In the present case part of the dia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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