TaxTMI 
TaxTMI 
2022 (2) TMI 1134
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....5 dt.07.12.2005 in Appeal No.C/132/1998 on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore. Both the Appeals are filed by the Department. 2. Brief facts leading to the filing of these Appeals are that on 07.05.1995, the officers of the Customs Preventive (Headquarters) got prior information that some gold biscuits of foreign origin were secretly kept at a shop in Secunderabad. Therefore, they searched the shop and found that one person by name Mr. C.Srinivas was in possession of 10 numbers of foreign marking gold biscuits and another person by name Mr. R. Kailash was in possession of 13 numbers of foreign marking gold biscuits and 2 numbers of gold ingots. Since both of them could not prod....
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....e disputed the seizure. 3. The case was adjudicated by the Commissioner vide OIO. 4/97 dt.31.10.1997 observing that Sri Kailash, being in jewellery business would not obtain foreign marking gold biscuits from Sri Maggesh without any exchange of sale proceeds and without being accompanied by customs duty paid receipts and since no receipts were submitted at the time of seizure, the arguments put forth subsequent to seizure, were only an after-thought and are liable to be rejected. In so far as Sri C.Srinivas's explanation was concerned, the Commissioner held that the story that the gold was obtained from locals and purified is farfetched and does not merit consideration. He therefore imposed the penalty of Rs. 5,00,000/- on Mr. Kailash, R....
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....STAT is right in setting aside the Commissioner's Order-in-Original No.04/97-Cus dt.31.10.1997 while holding that "the impugned order is required to be set aside for the simple reason that the Revenue has not established that the seized goods were smuggled ones and illicitly imported into India" is contrary to the spirit of Section 123 of the Customs Act, 1962, that the burden of proof lies on the respondent that the gold seized from him is not smuggled gold? (3) Whether the CESTAT is justified in setting aside the Order-in- Original dt.31.10.1997 passed by the Commissioner by observing that seizure was made by Police without any evidence to that effect and relying on judgments which are not relevant in the present case? 6. Lear....
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....y under any stretch of imagination and particularly embossing the same with foreign marking is also not possible. Therefore, according to him, the Tribunal has erred in allowing the Appeals of the accused. 8. Having regard to the rival contentions and the material on record, this Court finds that as regards Mr. R. Kailash, though he has given a statement under Section 108 of the Customs Act, admitting that he has no duty paid receipts for the gold biscuits found in his possession, he rebutted the same by producing baggage receipts to prove that the gold biscuits and ingots seized from him have been brought into the country by paying respective charges. Though under Section 123 of the Customs Act the initial burden to prove that the gold ....