TMI Blog2003 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... es of M/s. Jai Saraswati Refinery Works and from the possession of its proprietor Shri Jitendra Pawar (appellant No. 1). The gold recovered was, 1 gold biscuit bearing marking UBS (10 tolas), 2 gold biscuits bearing marking 'COMMERZ BANK (10 tolas), 3 gold biscuits bearing marking 'CREDIT SUISEE' (10 tolas), 2 gold biscuits with marking UBS (10 tolas), 2 gold rod/wire weighing 164.750 grms and 86.150 grms, 1 cut piece of gold weighing 26.420 grms. 1 gold lump bearing marking JSR and Lotus flower weighing 33 grms and 5 pieces of gold lump weighing 23.850 grms, as detailed in the seizure memo which was also prepared by the Police. Later on, the Police authorities handed over all these gold to the Superintendent of Customs on 31-5-2000 who too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Apex Court in Gian Chand v. State of Punjab - 1983 (13) E.L.T. 1365 as well as in State of Maharashtra v. Prithiviraj Pokhrai Jain - 2000 (126) E.L.T. 180 (Bom.) wherein it has been observed that in a case of seizure of gold by the police, no presumption under Section 123 of the Customs Act regarding its smuggled nature can be drawn. 4. That being so, the initial burden was on the Department to prove that the gold seized from the possession of appellant No. 1 was smuggled one and mere foreign marking which was only on the gold biscuits and not on the other gold items detailed above, was not sufficient to raise an inferences that it was smuggled into India. In this context reference may be made to State of Maharashtra v. Prithviraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. His statement had even been corroborated by Kasturchand Mohanchand Baid who in his statement disclosed on 8-8-2000 that 7 biscuits of gold was sold to Jitendra Pawar, appellant No. 1 and after adjusting the purchase of some bullions from Jitendra Pawar, appellant No. 1, the balance payment was received by him. This evidence has been wrongly ignored by the authorities below. The bill dated 5-11-98 issued by the firm Kasturchand Mohanchand Baid had been brushed aside on the ground that it was produced after six days of seizure. But this could not be legally done, when the firm which issued the bill had accepted its correctness. Similarly, the bill issued by Anoop Jewellers regarding sale of the gold to appellant No. 1 on 19-4-2000 had also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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