2018 (3) TMI 566 - AT - Customs

Tribunal modifies order, allows appeal partially. Gold released on payment, penalty set aside. Burden on department to prove smuggling.

Shri Alam, Mohd. Waseem alias Babu, Shri Javed Versus The Commissioner (Appeals-I), Customs, CE & ST, Meerut

The Tribunal modified the impugned order, allowing the appeal in part. The gold was to be released on payment of duty and redemption fine, with the ... Absolute confiscation - penalty - smuggling - Foreign Origin Gold Bar bearing Suisse mark with 999.9 purity - prohibited goods or not? - Held that: - it is an admitted case of Town Seizure of the Gold. In the circumstances although the case of smuggling is not made out, but the appellant Mohd Waseem have failed to discharge the onus under Section 123 of the Customs Act, as to the licit import of the gold originally seized by the Police Officers and subsequently seized by the Customs Authority - also, gold is otherwise importable on payment of appropriate duty and is not prohibited. Appeal allowed in part. Issues:- Confiscation of eight pieces of Foreign Origin Gold Bar- Penalty under Section 112(b)(i) of the Customs Act, 1962- Legal import of seized gold biscuits- Defence put up by the appellants- Confiscation and penalty imposed by the Additional Commissioner- Appeal rejection by the Commissioner (Appeals)- Time-barred appeal of one of the appellants- Observations and decisions of the Adjudicating Authority- Burden of proof on the department- Provisions of the Customs Act invoked- Failure to produce duty paying documents- Modification of the impugned orderDetailed Analysis:1. Confiscation of Gold Bars: The case involved the confiscation of eight pieces of Foreign Origin Gold Bar bearing Suisse mark with 999.9 purity without serial numbers, collectively weighing 933.120 gms. The Customs Department proposed confiscation and penalty under Section 112(b)(i) of the Customs Act, 1962.2. Legal Import of Seized Gold Biscuits: The appellants claimed legal import of the seized gold biscuits, providing documents like Baggage Receipts and Cash Receipts to support their defense. However, the defense was contested by the Revenue, stating it was an afterthought and not reliable.3. Defence Put Up by the Appellants: The appellants denied the charges, with one admitting to involvement in trading smuggled gold bars. The Additional Commissioner adjudicated the case, confiscating the gold bars and imposing penalties on the appellants.4. Appeal Rejection: The appeal before the Commissioner (Appeals) was rejected for being time-barred for one appellant, while the appeal of others was rejected jointly.5. Observations and Decisions: The Adjudicating Authority observed that the Noticee confessed involvement in trading smuggled gold bars. However, the documentary evidence and affidavits submitted during the investigation were ignored.6. Burden of Proof: The burden lay on the department to prove the gold bars were smuggled, especially when documentary evidence for legal import was presented. The Police, not Customs Officers, initially seized the gold.7. Provisions of the Customs Act: The Adjudicating Authority's decision to absolutely confiscate the gold was deemed contrary to Section 125 of the Customs Act, as importation of gold is not prohibited.8. Failure to Produce Documents: The failure to produce duty paying documents immediately at the time of recovery did not conclusively prove the gold bars were smuggled.9. Modification of Order: The Tribunal modified the impugned order, allowing the appeal in part. The gold was to be released on payment of duty and redemption fine, with the penalty under Section 112(b)(i) set aside for all appellants.