TaxTMI 
TaxTMI 
2025 (3) TMI 693
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....rom Nellore to Vijayawada on 17.10.2022 at 17.40 hrs. Under a pachanama dated 17.10.2022 the Customs Officer seized ten pieces of gold metal weighing 850.39 grams. Burri Yedukondalu was found without any documents, bills or invoices related to confiscated gold. 4. Learned Counsel for the appellants argued that one Appellant Shri Kapalavai Naga Sambasivarao handed over 950 grams of gold jewellery to Shri Burri Yedukondalu to obtain new jewellery at Nellore. Shri Burri Yedukondalu proceeded to Nellore and met Devidas Yaswant Jadhav, Proprietor Devabhatti, a gold melter, refiner and goldsmith and handed over old gold jewellery and received 850.39 grams of pure gold in ten pieces, since required models of jewellery were not available. The gold bars and pieces are not standard size and did not marked any foreign origin. Statement of one Appellant Shri Kapalavai Naga Sambasiva Rao who is claiming to be owner recorded on 07.02.2023 after more than 3 months after seizure. Similarly, the statement of another Appellant Shri Devidas Yaswant Jadhav recorded on 16.03.3023 after 4 months 20 days after seizure. No any justification for such delay. Bank appraisers are not experts in testing gold ....
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....Dattatreya Associates in Durgi), on 17.10.2022, he started from Durgi to Nellore along with cash of Rs. 43,50,000/- given by owner and reached Nellore. He handed over the cash to Devabatti located at Mandapala Veedhi, Nellore and collected 10 pieces of gold in different sizes totally weighing 850.390 grams from them. He wrapped the gold in a paper and placed it inside a secret pocket of his pant. He reached Nellore APSRTC bus stand to proceed to Durgi for handing over the gold to his owner Shri Kapalavai Naga Samba Siva Rao at Durgi. He boarded APSRTC bus and the bus reached Chilakaluripeta and the customs officers intercepted him there on his arrival. His owner Shri Kapalavai Naga Samba Siva Rao has a gold business in the name of M/s Dattatreya Associates in Durgi. His owner buys gold from Devabatti in Nellore who illegally imports foreign gold, melts it and recasts into gold bars. The gold which he was carrying was collected from Devabatti in Nellore. He doesn't have any documents/invoices/Bills of Entry for this gold. He gave cash of Rs. 43.50 Lakhs to Devabatti located at Mandapala Veedhi in Nellore, collected gold weighing 850.39 grams from them without any documents/Invoices/....
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.... is admissible in evidence but such statement may be scrutinised in facts and circumstances of the case. It cannot be presumed that statement recorded by Customs Officer will be treated as gospel truth. Learned Counsel for the appellants argued that Department prepared a concocted story and witnesses are habitual/pocket witness. He produced a copy of Panchanama dated 20.03.2023 at 19.45 hrs onwards relating to place Prakasam District, Andhra Pradesh in which a witness named Shri Gedela Nageswara Rao with same address. How it is possible a person will be available as a witness in so many places. It creates doubt on panchanama as well as statement as recorded. 11. In this regard, it is important to mention Section 123 of the Customs Act as thus - 123. 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 po....
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....nts proved that the seized gold is related to Shri Kapalavai Naga Sambasiva Rao. 14. Learned AR also relied on Hon'ble Supreme Court decision of Pukhraj Vs D.R. Kohli, Collector of Central Excise, Madhya Pradesh, Vidarbha & Another [1962 (3) TMI 2 -SC] in which it was held that "If the circumstances of seizure reasonably justify the belief in the mind of the seizing officer that goods are smuggled goods, the court is not to sit in appeal over his decision of seizing such goods. All that the court is to see whether there are grounds which prima facie justify the said reasonable belief". In this case, as Customs Officer intercepted and seized the gold. No any statement of appellant's that seized gold is related to smuggled gold. In these facts and circumstances, this case law is not applicable in these appeals. 15. Learned AR also relied on Hon'ble Supreme Court decision in the case of State of Gujarat Vs Mohanlal Jitmalji Porwal and Another [1987 (3) TMI 111 - SC]. This case law also not applicable since no any acceptance of smuggled gold. He also relied on Gudipati Subba Reddy Vs Commissioner of Central Tax, Guntur [2023 (385) ELT 394 (Tri-Hyd)] decided by this Bench in which it ....