Page 202 - ELT_1st June 2020_VOL 372_Part 5th

736 EXCISE LAW TIMES [ Vol. 372

IGI Airport, Delhi. On being asked the applicant produced the purchase invoices
dated 13-5-2014 and 11-7-2014 on 16-12-2019. Since no one appeared for hearing
from the respondent’s side nor any request for adjournment has been received,
the case is being taken up for final disposal.
5. On examination of the relevant case records, the Commissioner (Ap-
peals)’s order and the revision application it is evident that the impugned gold
items were recovered from the applicant. He did not declare the same under Sec-
tion 77 of Customs Act, 1962 to the customs authorities at the airport. Further the
applicant has admitted the fact of recovery of impugned gold items from his
body search in his statement tendered under Section 108 of Customs Act, 1962 on
16-2-2017. During personal hearing the applicant admitted that he did not get an
export certificate made nor did he declare the impugned goods at the time of his
arrival at IGI Airport, Delhi. Later on the applicant submitted invoices issued by
M/s. Kishan Lal Jewels Pvt. Limited, 1244, Kucha Mahajani, Chandni Chowk,
Delhi-110006, Bearing Nos. C-440, dated 13-5-2014 and C-668, dated 11-7-2014
regarding purchase of impugned items in India.
6. Section 123 of Customs Act, 1962 reads as follows :
“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 per-
son, —
(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 notifi-
cation in the Official Gazette, specify.”
Hence the burden of proof is on the PAX from whom the impugned goods are
recovered that they are not smuggled goods in terms of Section 123 of Customs
Act, 1962.
No evidence has been put forth by the applicant establishing his conten-
tion that impugned goods are of Indian origin except the invoices which cannot
be treated as substantive evidence. The applicant was asked to give evidence re-
garding the mode of payment in respect of Purchase Invoices No. C-440, dated
13-5-2014 and No. C-668, dated 11-7-2014 and the fact that he was in India on
these dates, i.e., the dates of purchase of impugned goods. Since the applicant
has not furnished cogent evidence in support of his contention that the goods are
of Indian origin the same cannot be accepted and is rejected.
7. It is observed that the applicant did not request for permission to re-
export the impugned goods before the lower authorities. Government holds that
re-export of the confiscated goods cannot be considered at this stage.
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