TaxTMI 
TaxTMI 
2023 (9) TMI 142
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....tic Terminal of Chennai Airport when he was about to board the flight no. SG 3241, bound for Cochin on 19.03.2013. 2.2 It appears that on preliminary enquiry by the Officers in the presence of independent witnesses, the first appellant, who was travelling to Cochin with his son namely Mr. Sanjay Kumar, appears to have admitted to be carrying about 8.5 kilogrammes of gold jewellery of foreign origin to sell the same to certain jewellery shops in Cochin. The above appellant, upon being enquired as to the production of relevant documents like Bill-of-Entry, duty payment receipts, etc., appears to have admitted that he was not in possession of any such documents since the impugned gold jewelleries were smuggled into India without payment of duty through various airports over a period of time and that the payment towards the purchase of the above jewellery was made in cash. 2.3 It appears that upon examination of the hand baggage of the first appellant, the DRI found four boxes containing gold jewellery, which were examined, apparently, by a Government approved assayer namely, one Mr. Mohan Achari, who, after examination on the spot, appears to have certified that the said gold jewell....
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....ppellant had also been asked about the modus operandi of smuggling the gold jewellery into India, his alleged reply to which has also been reproduced at paragraph 5 of the Show Cause Notice. He was also asked about his last visit to Singapore, to which he appears to have indicated that it was on February 14th till 16th of February. He is also alleged to have indicated that he would record by writing the quantity of smuggled gold jewellery received by him from various operators in bits of paper and maintained the same until sale was made and the amount was fully realized and only thereafter he would discard the same. 4. It appears that during the investigation, there was a simultaneous search at the residential premises of appellant no. 1, during which time the Revenue appears to have seized: - i. 2.409 kgs. of assorted 22 ct. gold jewellery - all imported Singapore gold jewellery; ii. 4.627 kgs. of 24 ct. gold bars and bits; iii. 10.011 kgs. of assorted 22 ct. gold jewellery - Calcutta-made jewellery for which a separate mahazar was also drawn on the same date i.e., 19.03.2013. It also appears that the value, purity and origin of the said gold jewellery was certified by Mr.....
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....to have seized gold jewellery of different weightages from those business entities. 7. It appears that the first appellant-Mahaveer retracted his earlier statement vide letters dated 29.03.2013 and 15.05.2013 thereby also contending that the gold jewellery of 8.452 kgs. seized from him at the Airport was not smuggled jewellery and that his earlier statements were not true. Upon being questioned again by the Revenue, it appears that the first appellant again confirmed that his previous voluntary statements dated 19.03.2013 and 25.03.2013 were true and that the retraction letters dated 29.03.2013 and 15.05.2013 were sent on the advice of his counsel. 8.1 It appears that on 28.03.2013, the premises of M/s. Mundhra Jewellers was searched again, wherein four plastic boxes were found and seized. 8.2 Subsequently, it appears that the statement of Mr. G. Surendar Kumar, Accountant of M/s. Mundhra Bullion Pvt. Ltd. And M/s. Mundhra Jewellers was recorded on 29.03.2013. 8.3 Mr. Ashish Mundhra (appellant no. 2 herein) was also summoned and his statement was also recorded on 09.04.2013; the statement of Mr. Abishek Mundhra was also recorded on 12.04.2013. 8.4 It appears that Mr. Narayan S....
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....t be imposed. * 2.409 kgs. of seized 22 ct. Singapore gold jewellery should not be confiscated under Sections 111(d) and 111(l) ibid. * 4.627 kgs. of gold bars/bits seized from the residential premises, should not be confiscated under Section 121 ibid. * Penalty under Section 112 ibid. should not be imposed. * The 3 nos. of 1 kg. gold bars (9950 purity) seized from the premises of M/s. Mundhra Jewellers should not be confiscated under Section 121 ibid. * 10.011 kgs. of Indian-made 22 ct. assorted gold jewellery seized from the residential premises of appellant no. 1 should not be confiscated under Section 121 ibid. * 0.894 kg. of 22 ct. Singapore gold jewellery should not be confiscated under Sections 111(d) and 111(l) ibid. * Penalty under Section 112 ibid. should not be imposed. * 5.541 kgs. of 22 ct. Singapore gold jewellery should not be confiscated under Section 111(d) and 111(l) ibid. * Penalty under Section 112 ibid. should not be imposed. * 0.602 kg. of 22ct. Singapore gold jewellery should not be confiscated under Sections 111(d) and 111(l) ibid. * Penalty under Section 112 ibid. should not be imposed. * 0.584 kg. of 22 ct. Singapore gold jewellery ....
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.... * Confiscation of the seized 8.452 kgs. of smuggled 22ct. Singapore gold jewellery, valued at Rs.2,35,21,916/- under Section 111(d) and Section 111(l) of the Customs Act, 1962. * Confiscation of the seized 2.409 kgs. of smuggled 22ct. Singapore gold jewellery, valued at Rs.65,55,161/- under Section 111(d) and Section 111(l) of the Customs Act, 1962. * Confiscation of the 4.627 kgs. of gold bars/bits, valued at Rs.1,37,42,784/-, seized from Mr. Mahaveer's residential premises, being sale proceeds of smuggled gold jewellery, under Section 121 of the Customs Act, 1962. * Confiscation of the 3 nos. of 1 kg. gold bars (995 purity), valued at Rs.89,70,000/-, seized from the premises of M/s. Mundhra Jewellers, being sale proceeds of smuggled gold jewellery, under Section 121 of the Customs Act, 1962. * Confiscation of the 10.011 kgs. of Indian-made 22ct. assorted gold jewellery, valued at Rs.2,72,42,380/-seized from the residential premises of Mr. Mahaveer, being sale proceeds of smuggled gold jewellery, under Section 121 of the Customs Act, 1962. * Imposition of penalty of Rs.52,00,000/- (Rupees Fifty Two Lakhs only) on Mr. Mahaveer Pipada under Section 112(a) of the Customs A....
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....ra Jewellers situated at No.20, Thulasingam Street, Sowcarpet, Chennai - 600 079 was searched and 3 gold bars of 1 kg. each of 9950 purity were seized. * Simultaneous search was also conducted on the same day at the residential premises of Mr. Mahaveer Pipada wherein 10,011.9 grams of assorted jewellery, 2409.1 grams of assorted imported jewellery and 4647.200 grams of 24 carat gold bars and bits were seized, in the presence of Mrs. Srimathi Chandra, wife of Mr. Mahaveer Pipada. * The seizure was done on the reasonable belief that they are smuggled goods and that they are liable for confiscation. * Mr. P. Lal Chand Jain was presented with all the jewellery and bullion and he examined and certified them. The said Lal Chand Jain gave a report dated 19.03.2013, which is enclosed as Doc No.9 at page nos.35 to 38, in Annexure-A to the Show Cause Notice. Mr. Lal Chand Jain used the word "imported" for the assorted jewellery weighing 2409.1 grams. * But however, his ability to declare as to foreign origin and the method used to determine, is not forthcoming nor has his certificate indicated the very basis of his conclusion as to any marking to the effect on any of the gold jewelle....
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....n dated 25.02.2021 as well as by communication dated 26.03.2021, were denied, thereby depriving the appellant to prove that Mr. Mohan Achari and Mr. Lal Chand Jain are not only incompetent and have not carried out any test of any nature to determine and conclude as to whether the jewellery was Indian-made or foreign jewellery, but also to establish that none of the jewellery were of foreign origin. In this regard, reliance has been placed on the following case-law: i. Commissioner of Customs v. Mohammed Ali Jinnah [Customs Appeal No. 40099 of 2020 - Final Order No. 40289 of 2023 dtd. 20.04.2023 - CESTAT, Chennai] ii. Daleep Kumar Verma v. Commissioner of Customs (Preventive), Shillong & ors. [Customs Appeal No. 75315 of 2022 & ors. - Final Order Nos. 75300-75302 of 2023 dtd. 04.05.2023 - CESTAT, Kolkata] (para. 20) iii. Customs v. Dina Aruna Gupta [2011 SCC Online Del 3024] (paras. 31 and 32) iv. Central Excise Department, Bangalore v. P. Somasundaram [1979 SCC OnlineKar 187] (para.9) * The alleged statement said to have been given under Section 108 of the Customs Act and that too, when retracted, cannot alone be the basis of confiscation. In this regard he has relied on ....
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...., the appellant no. 1 herein. 16.2 He would take us through various portions of the findings in the impugned order to highlight the modus operandi of the first appellant, who was regularly importing gold jewellery from Singapore through some of his 'Burma Bazaar' operators. 16.3 He would also urge that both the appellants had a conspirational arrangement to smuggle gold jewellery from Singapore by engaging carriers, thereby avoiding Customs Duty, through various airports. 17.1 In his rejoinder, the Ld. Senior Advocate would contend that the DRI, during the course of investigation, has searched and recorded statements of the owners/personnel of various gold jewellery shops and have also seized gold jewellery apparently based on the statement of the appellant no. 1, but however, both the appellants have retracted their original statements; that the Revenue thereafter again made the appellants to retract even the retraction statement by coercing the appellants and hence none of the statements of the appellants are reliable and other than this, the Revenue has no other piece of evidence to implicate the appellants in the alleged act of smuggling gold jewellery from Singapore. 17.2 ....
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.... had suffered local tax and that there was no material on record to support, in the Show Cause Notice that he received smuggled Singapore gold jewellery without bills; they had received the gold as part of their purchase for business in terms of duly accounted tax paid invoice and payment was made through banking channels. 17.7 Insofar as seizure of 3 kgs. of gold bars from the office premises of M/s. Mundhra Bullion Pvt. Ltd. is concerned, it was argued that the same contained serial nos. 2195147, 2195148 and 2195176 on the gold bars, which were delivered vide two Bullion Operations Delivery Order memos dated 08.03.2013 and 11.03.2013, a delivery note (Form JJ) dated 18.03.2013 and a voucher dated 18.03.2013 of M/s. GRT Jewellers; that the serial numbers would match with the Bullion Operation delivery order memos dated 08.03.2013 and 11.03.2013 of HDFC Bank (as could be seen from paragraph 62.2 of the impugned Order-in-Original), which would clearly show that the said gold bars were locally purchased through banking channels by M/s. GR Thanga Maaligai Jewellers Pvt. Ltd. and hence, the seizure of the same ignoring the valid documents is a serious illegality and clear abuse of pro....
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....ons are also required to be looked into, namely, Sections 2(22), (33) and (39), Section 111(i) and (p), Section 112, Section 120, Section 121 and Section 123: - Relevant statutory provisions: ▪ Section 2(22), (33) and (39): - "Section 2. Definitions. - In this Act, unless the context otherwise requires. (22) "goods" includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of movable property; ... (33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with; ... (39) "smuggling", in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113;" ▪ Section 111 (d), (i), (l) and (p): - "Section 111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation : ....
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.... section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty [not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty [not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty [not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest." ▪ Section 120: - "Section 120. Confiscation of smuggled goods notwithstanding any change in form, etc. - (1) Smuggled goods may be confiscated notwithstanding any change in their form. (2) Where smuggled goods are mixed with other goods in such manner that the smuggled goods cannot be separated from such other goods, the whole of the goods shall be liable to confiscation : Provided that where the owner of such go....
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....d. We do not find concrete evidence, much less any evidence at all to indicate that the gold jewellery that were seized / confiscated were of foreign / Singapore origin. Even the Assayers have not specifically identified the presence of any mark to the effect that the goods in question were of foreign / Singapore origin. We do not find any material placed on record before us as to how a gold jewellery could be identified as Singapore make. We also do not find any distinguishing factor being placed on record by the Revenue or even by Lal Chand Jain, to opine that the gold jewellery he examined were of Calcutta make. Hence, the only source for the Revenue to allege that some of the gold jewellery were of foreign / Singapore make are the alleged inculpatory statements recorded under Section 108 of the Customs Act. Having obtained such statements, there could have been further investigation to find out the veracity of such statements or, at least, to prove such statements, but we do not see any such effort, being placed on record, at least before us. But however, it is a fact borne on record that the statements of crucial persons have also been retracted. 21.2 From the facts of the ca....
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....the appeal of the respondents herein and setting aside the order of confiscation of the seized gold, by totally discarding the confessional statements given by the respondents under the provisions of Section 108 of the Customs Act, 1962, which are in the nature of admissible legal evidence, as clearly mandated by the Hon'ble Supreme Court in the cases of (i) K.I. Pavunny v. The Assistant Collector (HQ), (1997) 3 SCC 721, and (ii) Naresh J. Sukhwani v. Union of India - (1996) SCC (Cri) 76 = 1996 (83) E.L.T. 258 (S.C.)? (b) Whether in the facts and circumstances of the case and in law, the Tribunal is justified in holding that the respondents have discharged their burden/onus cast on them in terms of the provisions of Section 123 of the Customs Act, 1962 to prove and/or establish that the huge quantity of 575 gold bars seized from their custody is not the smuggled one, in spite of the fact that no legal evidence, such as maintenance of any basic books of account whatsoever, registration details under the provisions of sales tax, payment of purchase price of the gold, payment of Government levies, like income-tax, Sales Tax, etc., duly supported by the annual returns, etc., has been....
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.... gold is a smuggled gold. However, he was unable to show us any confessional statements in respect of gold made either by respondent No. 1 and/or his Drivers/Employees/ Agents. In fact, the impugned order of the Tribunal also records this finding of fact in respect of respondent No. 1 in para 14 of the impugned order dated 3rd June, 2005. (iv) ... (v) In the above view, no fault can be found in the impugned order dated 3rd June, 2005 on the above question. (vi) Therefore, this substantial question of law is answered in the affirmative i.e. in favour of the respondent-assessee and against the appellant-Revenue. (B) Reg. Question (b) :- (i) The grievance of the Revenue as brought out in this question is that the burden of proof cast upon the respondent under Section 123 of the Act, that they were not smuggled goods, is not discharged. This we note from the questions framed is only in view of the absence of legal evidence, such as maintenance of books of account, registration with the Sales Tax, Income-tax, etc., to show legal purchase of the gold. (ii) ... (iii) We are of the view that in the absence of evidence in the form of regular books of account, registration unde....
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....dent No. 1 has discharged the primary onus by showing the source of its purchase of gold. In fact, respondent No. 1 has also shown the source of its source. Thus, shifting the onus upon the Revenue. In the absence of the Revenue discharging its onus, it must follow that in the present facts, the respondent has discharged the burden of proof imposed upon him under Section 123 of the Act." 22. In view of our above discussion, we are satisfied that the officers of the Department had no reasonable belief that the gold jewellery seized were smuggled and therefore, they have not discharged their primary responsibility of forming a prima facie / reasonable belief under Section 123 ibid., without which, the burden of proof could not shift to the appellants from whom the goods in question have been seized. As contended by the Ld. Advocate, the sources in respect of some of the items seized, like gold bars and gold jewellery, have been explained even during investigation and also in writing, but however, the same have been ignored by the Department. 23. From the impugned Order-in-Original, we find, at paragraph 8, that it was one Benny working with M/s. Prince Jewellers, who is a friend of....
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.... question were of foreign origin, rejection of the request for their cross-examination without assigning any reasons would very well shake the very foundation of the Revenue's case. They are no doubt Government approved Assayers, but whether they are experts in the respective fields who could identify the source or origin of a gold jewellery, is required to be established by the Revenue. 25.1 From the documents placed before us, we find that 8.452 kgs. of gold jewellery, alleged to be 'Singapore gold jewellery', was seized at Chennai Domestic Airport on 19.03.2013 and as a follow-up action, a search was conducted at the residential premises of Mr. Mahaveer Pipada which resulted in the seizure of 2.409 kgs. of allegedly Singapore gold jewellery, 10.011 kgs. of admittedly Indian-made gold jewellery, 4.627 kgs. of gold bars and bits. Apart from this, 3 kgs. of gold bars were seized from the premises of M/s. Mundhra Jewellers. 25.2 The allegation for the seizure of the above 8.452 kgs. of jewellery at the airport and 2.409 kgs. of jewellery at the residence of Mr. Mahaveer Pipada was that these jewellery of Singapore origin were smuggled through Burma Bazaar operators through differe....
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....n Origin remolten gold/gold ornaments could not be legally confiscated as the possession of the same is not prohibited under any provision of law. In the present case, the seized gold do not bear foreign markings and do not have uniform weight/purity. It is observed that the respondent belongs to a respectable and a well to do family. She is also a regular Income Tax assessee. The seized gold rods were made from the gold ornaments belonging to her." 29.3 Further, the Hon'ble High Court of Judicature at Bombay in the case of State of Maharashtra v. Prithviraj Pokhraj Jain [2000 (126) E.LT. 180 (Bom.)] has, at paragraph 19, held as under: - "19. The burden was, therefore, on the prosecution to prove that the goods were smuggled. For this the prosecution relied upon the evidence of Hebbar who stated that he believed the goods to be smuggled, because watches and watch straps were of foreign origin, the import of which was heavily restricted and prohibited and they were found in huge quantity. The foreign origin of the watches is tried to be shown from the foreign markings on the watches. The question whether the foreign markings of goods can be treated as admissible in evidence was ....
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....y by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 11. We may straightaway say that the provisions of Section 9D of the Central Excise Act, 1944 are identical to the provisions of Section 138B of the Customs Act, 1962 which would be applicable in the present case. 12. Section 138B of the Customs Act, 1962 reads as under:- "138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving, in any pr....
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....erse consequences to the accused, at the same time, under certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi judicial proceedings. (Emphasis supplied) 30.2 Further, the Hon'ble High Court of Delhi in the case of Flevel International v. Commissioner of Central Excise reported in 2016 (332) E.L.T. 416 (Del.), in paragraph 42 of the judgment, held as under: "42. It is settled law that the denial of opportunity of cross-examination of a ....
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....- "B. Gold jewellery weighing 581.71 grams seized from the appellant (part of S.No.(ii) of the operative part of the Order in original) 33. These gold ornaments were confiscated in the order in original and the confiscation was upheld in the impugned order under sections 111(d), 111(i) and 111(p) read with section 120 of the Customs Act. Section 120 provides that Smuggled goods may be confiscated notwithstanding any change in their form. Further, it also provides that where smuggled goods are mixed with other goods in such manner that the smuggled goods cannot be separated from such other goods, the whole of the goods shall be liable to confiscation. It is the case of the department that the seized jewellery was made out of smuggled gold and NOT that it itself was smuggled. There were also no foreign markings on them to show that the jewellery is smuggled. Thus, it is not in dispute that the gold jewellery was not smuggled but is made in India. If it was established with some evidence that the jewellery was manufactured out of smuggled gold, then such smuggled gold would have been covered under Section 123 and by virtue of section 120, would have been liable for confiscation no....
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....ents) that the jewellery was manufactured out of smuggled gold, then such smuggled gold would have been covered under Section 123 and by virtue of section 120, would have been liable for confiscation notwithstanding the change in its form into jewellery. However, there is no such evidence on record. In our considered view, therefore, the jewellery is not liable to confiscation in the absence of any evidence that it is smuggled or it has been made by converting smuggled gold. The mere fact that the jewellery was found along with the smuggled gold bars and gold coins makes no difference." 32. Insofar as burden of proof within the meaning of Section 123 ibid. is concerned, the following orders guide us to understand the same better. 32.1 In the case of Daleep Kumar Verma v. Commissioner of Customs (Preventive), Shillong & ors. [Customs Appeal No. 75315 of 2022 & ors. - Final Order Nos. 75300-75302 of 2023 dated 04.05.2023 - CESTAT, Kolkata], the co-ordinate Kolkata Bench has held as under: - "18.3 We find merit in the argument of the Appellants. The gold bangles seized from Indigo airlines, does not have any foreign markings. They were claimed by Mr Karan Sehdev of KSTE that they ....
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....ef of the officers. In the present case, none of the statements recorded by the Department admit to or even suggest that the gold was smuggled gold. It has also not been brought out in the show cause notice that the purity of the seized gold is such that it could only have been of foreign origin. It is true that the conduct of the appellants was suspicious inasmuch as the gold pieces were being carried in newspapers and a letter was found written to one Shri Vijay in Trissur for requesting the gold to be handed over to the bearer of the letter. It is also confirmed by the DCM, Railways that the appellants had travelled from Trissur to Vijayawada by train. However, we note that Trissur is not even a port in itself. The gold was apparently collected from one Shri Vijay in Trissur. There were also several contradictions between different statements as recorded in para 16 of the show cause notice. All these would show that Shri Kanaka Ratnam (Appellant in Appeal No. 30496 of 2017) wrote a letter to Shri Vijay of Trissur to hand over gold to the bearer of the letter and both the letter and the gold were recovered from his son Shri Naga Venkata Raghavendra (Appellant in Appeal No. 30495 ....
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....t. As discussed in para 19 above, the Appellant has produced evidence to the effect that the gold were procured from domestic sources. Hence, we hold that no weightage can be given for the certificate of purity issued by the Expert, to establish its foreign origin." 32.2 The Bangalore Bench of the CESTAT in the case of Naveed Ahmed Khan v. Commissioner of Customs, Bangalore [2005 (182) E.L.T. 494 (Tri. - Bang.)], after considering the rival contentions, has concluded as under:- "5. On a careful consideration of the submissions, we find from the facts of the case that the goods were seized in Bangalore by the Police. And the appellants had handed over the goods under seizure to the Customs Department for further investigation. In terms of the judgments relied by the Counsel which are noted supra, Section 123 of the Customs Act is inapplicable when the Police have seized the goods and handed over the same to the Customs Department as held in the case of Jitendra Pawar v. C.C.; Rajkamal Departmental Stores; State of Maharashtra v. P.P. Jain. Therefore, the burden of proving that the goods are smuggled ones is on the Revenue. The Commissioner has taken a view that the department has....
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.... such high purity. It is seen mentioned in the mahazar dated 23.1.2017 that the gold was assayed by the assayer on the same day. However, the said document is not made part of relied upon documents for the purpose of issuing Show Cause Notice. The learned counsel for respondent has submitted that the respondent was not served with copy of this document. The said contention was raised before the Commissioner (Appeals) also. On the date of hearing of this appeal by us, the learned AR has produced a copy of this document purported to be issued by assayer. We do not understand what prevented the department from placing this document as part of relied upon documents. Usually, only copies of the Relied Upon Documents are given to the noticee. It can therefore be inferred that the appellant was not given copy of this document. Although it is seen mentioned in the mahazar that the assayer certified the purity of gold on the same day of the incident (23.1.2017), the date mentioned in the certificate produced by the learned AR is 24.1.2017. Further, it says 24 karat gold and does not say 999.9%. This document is produced only now, at the second appeal stage. This document which is not made....
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....t merely says 24 carat. It does not mention the method adopted to test the purity. Further, the certificate is not made part of RUD. The copy of certificate is not given to the respondent. Again, the request to cross-examine the assayer was denied. It is produced belatedly and there is no petition filed by learned AR stating reasons to accept the document at the appellate stage. On the totality of these facts, we have to hold that the certificate of the assayer produced by the learned AR cannot be accepted in evidence. 32. Apart from the certificate, the department relies on the statements given by the respondent on 23/24.1.2017. These statements have been retracted later by the respondent. In such circumstances, the department has to place reliable evidence to prove that the gold is smuggled from Sri Lanka. There is no evidence to prove that the gold is smuggled from Sri Lanka or any connection of the gold with Murugan or Batcha. ... 34. In the absence of foreign markings, there should be cogent evidence to establish that the gold is of foreign origin. The contention of the learned AR that if gold jewellery when converted into bullion will not have 999.9% purity is without a....
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....whereas Sections 104 to 106 deal with the situation where the burden of proof is placed on a specific individual. 34.3.1 The burden of proof is defined under Section 101 of the Indian Evidence Act: - "Anyone who wants a court to rule on a legal right or responsibility based on facts he claims must first show that such facts exist. The second Section of the statute specifies that when a person is required to show the existence of a fact, that person shall also bear the burden of proof. As a result, a person seeking a favourable decision from the court must provide evidence in support of his case, according to this clause. The usual rule is that the party that asserts a truth bears the burden of proof, not the side that denies it." 34.3.2 Section 102 of the Indian Evidence Act reads as under: - "Who bears the burden of proof - In a suit or procedure, the person who would fail if no evidence was presented on either side has the burden of proof." 34.3.3 Section 103 of the Indian Evidence Act states: "The burden of proof as to any specific fact is with the person who asks the court to believe in its existence unless any law provides that the burden of proof rests with any ....