TaxTMI 
TaxTMI 
2020 (3) TMI 774
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....e appeal may be noticed. The appellant is the owner of a small shop located in close proximity to Srimantapur Land Customs Station, Sonamura, Tripura, which is located on Indo-Bangladesh border. On 27-9-2014, Customs Officers, Sonamura LCS along with BSF carried out a search operation in the shop of the appellant and seized Indian currency amounting to Rs. 8,23,100/- and also Bangladesh Taka 3,32,335/- valued at Rs. 2,32,635/-. According to the appellant, the Bangladesh Taka belonged to his cousin who is a Bangladeshi national and was on visit to India and staying in the house of the appellant during September, 2014. The seizure was contested by the appellant before the Adjudicating Authority. The Additional Commissioner of Customs (Preventive) vide order dated 17-12-2015 passed under Sections 111(b), (d) and 121 of the Act read with Section 13 of FEMA, 1999 ordered confiscation and imposed penalty under Section 112(b)(i) of the Act. Accordingly, the Additional Commissioner of Customs (Preventive) ordered absolute confiscation of Bangladesh currency taka 3,32,335/- valued at Rs. 2,32,635/- under Section 111(b) and (d) of the Act. Besides, confiscation of Indian currency amounting t....
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.... is concerned, confiscation did not raise any substantial question of law. However, the appeal was admitted to answer the following substantial question of law which reads thus : "Whether on the facts and in the circumstances of the present case, the Tribunal has proceeded on irrelevant considerations and has erred in passing the impugned order dated 28-4-2017 and in approving the order-in-appeal dated 31-5-2016 and order-in-original dated 7-12-2015 without examining the entire record?" 6. The appeal finally came up for hearing on 23-2-2018 and the then Division Bench after noticing the substantial question of law, dismissed the appeal. However, on a review petition filed by the appellant, the order was recalled vide order dated 15-10-2018 and the present customs appeal was restored to its original number for decision on the substantial question of law framed on 23-6-2017. It is in this background that the present appeal is listed before us today. 7. We have heard Learned Counsel for the parties. 8. Learned Counsel for the appellant, inter alia, submitted that the appellant had taken a loan of Rs. 5,50,000/- in cash on 8-2-2012 from his father-in-law Shri Sunil ....
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....cope of Section 123 of the Act needs to be examined which deals with burden of proof. The provision reads thus : "Burden of proof in certain cases. - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify." 13. On perusal of sub-section (1), it is explicit that when any goods to which the Section applies are seized under the Act under a reasonable belief that t....
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.... 17. However, the law nowhere envisages or raises any presumption in favour of the Department. The Revenue was required to produce material to have a reasonable belief that the Indian currency was on account of sale proceeds of smuggled goods. The Revenue respondent has not placed any material to substantiate that the seized amount of Rs. 8,23,100/- was on account of sale proceeds of any smuggled goods except to plead that inference ought to have been drawn against the appellant as there was admission on his part. The burden on the Revenue was required to be discharged by cogent material/evidence. 18. We now proceed to examine the evidence produced by the appellant. The appellant had drawn the attention of the Court to his statement recorded by the Superintendent of Customs (Preventive) Force Sonamura Sepahijala on 29-9-2014 wherein, in question Nos. 13 and 14 it was stated as under : "13. .... As regards Indian currency, I also do not have any licit documents but I was the actual owner of the same which were for my existing business. 14. .... Seized Indian currency of Rs. 8,23,100/- which were recovered from my shop is no way related to suggested Banglade....