Page 222 - ELT_1st June 2020_VOL 372_Part 5th

756 EXCISE LAW TIMES [ Vol. 372

ty on 13-6-2013 and the appellate authority on 5-2-2014 and the same was denied.
He was allowed to cross-examine only one person (customs officer at the x-ray
machine) and that too partially by the adjudicating authority out of the four per-
sons for whom he had requested for cross-examination.
6. The File Nos. VIII (48) 67/Prev/2012 pertaining to the case was
called from the Commissioner of Customs Jodhpur, Hqrtrs at New Central Rev-
enue Building, Statue Circle, C Scheme, Jaipur-302005 (erstwhile Commissioner
of Customs & Central Excise, Jaipur) and the case records have been perused.
7. It is observed that Sh. Manoj Kumar Sharma (PAX) did not declare
the impugned gold bars and forex brought by him from UAE under Section 77 of
Customs Act, 1962 to the customs authorities at Jaipur Airport. However on ask-
ing again at the red channel he verbally informed the customs authorities that he
was carrying 10 gold biscuits. The PAX has contended before the Government that the
customs declaration form was intentionally misplaced by the customs officer at red chan-
nel in the airport.
The contention of the PAX appears doubtful since the resumed customs
duty declaration form dated 23-9-2012 duly signed by the PAX (part of relied
upon documents) shows ‘nil’ dutiable goods. Even if it is assumed that the origi-
nal declaration form under Section 77 of Customs Act, 1962 got misplaced at the
red channel counter, no evidence has been put forth justifying his stand as to
why did he give a ‘nil declaration’ for the second time under Section 77 of Cus-
toms Act, 1962. It is apparent that the PAX gave the impugned declaration under
Section 77 of Customs Act, 1962 without any persuasion or coercion from the
customs authorities so as to suppress material information and derive undue
advantage.
It is pertinent to mention that the fact of non-declaration under Section
77 of Customs Act, 1962 has been duly recorded in the statement tendered under
Section 108 of Customs Act, 1962 signed by the PAX. Hence the allegation of the
PAX that the customs authorities had intentionally misplaced the customs decla-
ration form is baseless and remains unsubstantiated. Therefore this contention of
the PAX merits no consideration.
8. 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.

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