TMI Blog2003 (9) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ning; that a person whom he was having some land dispute with was killed in which he along with his sons were implicated by the family of the deceased; that the female members of his family transferred the valuables and cash, registers, etc. to the house of his neighbour, Shri Rakesh alias Kallu, for the purpose of safety; that the Police was on the look out of the Appellants and his sons as a FIR had been lodged against them; that Kallu divulged about the transfer of the valuables to his house to the Police which seized the same on 18-3-2000 from the house of said Kallu; that the Police officials handed over 19 gold biscuits and Indian currency amounting to Rs. 9,32,390.50 P to the Customs Officers on 27-3-2000 at Rath Police Station; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot embody a correct appreciation of the law as regards possession. A 'seizure' under the Authority of law does involve a deprivation of possession and not merely a custody and so when police officer seized the goods, the accused lost possession which vested in the police. When that possession is transferred, by virtue of the provisions contained in Section 180 to the Customs authorities, there is no fresh seizure under the Customs Act." 4.2He mentioned that the Tribunal has followed the judgment in a number of decisions; that it has been held by the Tribunal in Jai Narain Verma v. C.C. New Delhi, 1994 (72) E.L.T. 567 (T) that provisions of Section 123 of the Customs Act are not attracted as the gold was recovered by the Police and then ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led goods (iii) The same must be by a person having knowledge or reason to believe that the goods were of smuggled origin. (iv) The seller and purchaser and the quantities of gold must be established by the Customs authorities." 5.2He mentioned that none of these requisites of Section 121 are present in the instant matter as no sale has been established, identity of his buyer and seller has not been established. 6.Countering the arguments, Shri Virag Gupta, learned Departmental Representative, submitted that the Police Officers had only recovered the gold and the Indian currency from the residence of Shri Rakesh alias Kallu and the seizure of the same was made only by the Customs Authorities and, therefore, the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue." Reliance has also been placed on the decision in Shah Guman Mal v. State of Andhra Pradesh, 1983 (13) E.L.T. 1631 (S.C.). 7.The learned Senior Departmental Representative, further, submitted that the Indian currency is the sale proceeds of smuggled gold; that Shri A.N. Agarwal, son of the Appellant, had admitted in his statement dated 5-9-2000 that the gold was acquired by him to earn profit at a subsequent sale; that this clearly shows that the appellant was engaged in the business and purchase of smuggled gold; that no documents whatsoever had been produced by the Appellants to prove their claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant and M/s. Brijbasi Distributors was fake. The Tribunal has also held in S.K. Chains case that the fact of purchasing foreign marked gold biscuits from the open market without receipt "by itself is no indication that the gold under seizure was not legally imported." We are therefore of the view that the Appellant had discharged the burden, if any, cast upon him to prove that he had acquired the gold from a dealer. On the other hand Department has not discharged the onus to prove that the gold was smuggled one. The ratio of the decision in D. Bhormull case is not applicable as facts are different. In that case, D. Bhormull did not furnish any information regarding the source of the acquisition of the goods of foreign origin found pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of having purchased the biscuits in question from the above said firm against payment could not be brushed aside......" 9.Section 121 of the Customs Act provides that where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation. In the present matter, there is no material brought on record to show that the Appellant was dealing in the smuggled gold in the past. The Indian currency cannot be regarded as sale proceeds merely on the basis that the Appellant could not prove lawful acquisition of the Indian currency. Provisions of Section 123 of the Customs Act are not applicable to Indian currency and the onus of proof is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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