Appellant wins appeal after proving lawful gold possession with BBC invoices under Section 123

CESTAT Kolkata allowed the appeal against confiscation of 2332.800 gm foreign marked gold seized from appellant. The tribunal found appellant satisfactorily discharged burden of proof under Section 123 of Customs Act by providing BBC invoices within days of seizure, demonstrating licit possession. Department failed to prove falsity in evidence supplied by appellant. Minor clerical errors and internal notations on invoices were deemed insufficient grounds for confiscation. The tribunal quashed lower authority's orders, set aside gold confiscation and penalty, granting consequential relief to appellant.

---

---

Issues Involved:
1. Legality of the confiscation of 2332.800 gm of foreign marked gold.
2. Validity of the documents provided by the appellant to prove lawful possession.
3. Conduct of the appellant during the investigation.

Summary:

1. Legality of the confiscation of 2332.800 gm of foreign marked gold:
The Revenue seized 2332.800 gm of foreign marked gold in 1999, which was ordered to be confiscated by the Department. This order was upheld in appeal but later set aside by the Hon'ble High Court of Orissa, which remanded the matter for fresh consideration. The Commissioner (Appeals) again upheld the confiscation, stating that the appellant could not convincingly prove lawful import or acquisition of the gold, thereby validating the confiscation and penalization.

2. Validity of the documents provided by the appellant to prove lawful possession:
The appellant initially provided four bills from Visakha Bullion Corporation (VBC) to support the lawful acquisition of the gold. However, investigations revealed that these bills did not pertain to the seized gold, as the State Bank of India, from which VBC procured gold, did not sell UBS brand gold. The appellant later claimed ownership through two bills from Bherunath Bullion Corporation (BBC), which were verified by the Department. Despite the Department's skepticism about the manual inscription of "UBS" on the MMTC invoice, the Tribunal found that the appellant satisfactorily demonstrated the licit possession of the gold through these documents.

3. Conduct of the appellant during the investigation:
The appellant was accused of obstructing the investigation by not responding to summons and filing multiple petitions, which delayed the process. However, the Tribunal noted that such conduct could be due to various reasons, including fear and harassment, and did not necessarily indicate guilt. The Tribunal emphasized that the Department failed to provide conclusive evidence to refute the appellant's claims and documents.

Conclusion:
The Tribunal concluded that the appellant satisfactorily discharged the burden under Section 123 of the Customs Act, proving the lawful possession of the seized gold. The Department failed to irrefutably demonstrate any falsity in the evidence provided by the appellant. Consequently, the seizure and confiscation of the gold were deemed unlawful and set aside, and the appeal was allowed with consequential relief.

---