2010 (1) TMI 1049

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....(2)  He ordered absolute confiscation of Bangladesh currency recovered from Appellant No. 2 and also imposed penalty against him. The  Appeals are being disposed of by a common order. 3. Penalty was also imposed against two other persons but they are not in Appeal. 4.1 Briefly stated facts of the case are that on 28-3-2004 the BSF personnel of 15th Bn. and police personnel of Dinhata Police Station seized 22 carat purity valued at Rs. 71,600.00 which did not have any foreign marking from the possession of Shri Sahin Akhter while he was travelling by a route bus plying between Dinhata and Cooch-behar. 4.2 On 28-3-2004 at about 14.30 hrs the said BSF & Police officials seized from the residence of Shri Gautam Karmakar, B....

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.... under Sec. 123 of Customs Act, 1962, and that in the CESTAT, West Zonal Bench, Mumbai in the case of Kadarbhai J. Vora v. CC, Ahmedabad - 2004 (170) E.L.T. 555), 'Gold' has been held as non-notified item, and that burden is on the Department to prove the smuggled nature of gold. 6.1 Appellant No. 1 also contended that Seized Gold lumps are non-homogenous in weight and are 22 caret purity while foreign gold bars are of equal weight having foreign markings inscribed thereon, but no foreign inscription is embossed on seized gold lumps which it is submitted assertively is indigenous goods, not confiscable under Sec. 111(d) of Customs Act, 1962. 7. Appellant No. 2 contended that Bangladesh Taka seized from possession of Shri Gautam Karmak....

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....lant No. 1 by BSF and Police personnel. I also find that there is no dispute that the said gold biscuits did not have any foreign marking. I further find that the lower Authority has himself referred to these so called gold biscuits as to two biscuits of yellow metal (believed to be gold) throughout in his impugned order. The Appellant No. 1, regarding melting of ornaments submitted that he has got it done from another notice Shri Gopal Ravidas who has later on deposed that he has not melted or converted any gold ornaments into biscuits. Shri Gopal Ravidas however admitted that he had given a challan dated 27-1-2004 duly signed by him to Appellant No. 1 for the said two biscuits. No further investigation has been made by the Department ther....