Burden of proof for seized foreign-marked gold split the bench, with confiscation and penalties left unresolved pending a third member.

Burden of proof under Section 123 of the Customs Act remained the central issue for seized foreign-marked gold: one Member found the claimant had shown licit acquisition through invoices and supporting records, held the documents were not discredited, and concluded that confiscation and penalties could not stand; the other Member held the lawful-possession claim was belated, the retraction by carriers was unreliable, and the invoices and payment trail did not sufficiently link the records to the seized gold, so the statutory burden was not discharged and confiscation with penalties was justified. Because the Members reached opposing conclusions, the matter was referred to a third Member and no final majority determination was reached.

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Issues: Whether the appellants discharged the burden under Section 123 of the Customs Act, 1962 in respect of the seized foreign-marked gold, and whether confiscation of the gold together with the connected penalties was sustainable.

Analysis: One Member held that the claimant established licit acquisition through invoices and supporting records from the alleged seller, that the investigating authorities did not discredit the documents, and that the burden under Section 123 stood discharged. On that view, the gold was not liable to confiscation and the penalties could not survive. The other Member held that the claim of lawful possession was belated, the retraction by the carriers was unreliable, the invoices and payment trail did not satisfactorily connect the documents to the seized gold, and the claimant failed to discharge the statutory burden. On that view, the confiscation and penalties were justified.

Conclusion: The Members recorded differing conclusions on the principal issue, and the matter was referred for decision by a third Member.

Final Conclusion: No final majority determination was reached on the merits of confiscation and penalty, and the appeals were not finally concluded by the two-Member Bench.

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