2000 (6) TMI 90 - AT - Customs

Judgment sets aside impugned orders, emphasizes Board circulars and fair treatment in goods possession cases.

NS. ALLAUDEEN Versus COMMISSIONER OF CUSTOMS, TRICHY

NS. ALLAUDEEN Versus COMMISSIONER OF CUSTOMS, TRICHY - 2001 (131) E.L.T. 198 (Tri. - Chennai), 2000 (40) RLT 872 (CEGAT) Issues:1. Burden of proving licit possession of silver bar under Section 123 of the Customs Act, 1962.2. Justification for confiscation and penalty imposition due to lack of duty paying document particulars.Analysis:Issue 1: Burden of Proof under Section 123The appeal questioned whether the burden of proving licit possession of a 30.449 kgs silver bar rested on the appellants under Section 123 of the Customs Act, 1962. The consultant argued that since the silver bar did not bear foreign markings and was less than 100 kgs, the benefit of doubt as per Board's Circular F. No. 394/233/88-CUS should apply. The circular aimed to prevent harassment of individuals possessing small quantities of Indian origin silver bullion. It was highlighted that the silver bar in question did not bear foreign markings and was seized away from a coastal area, indicating no illicit export attempt. The Circular also stated that there was no incentive for illegal export of silver bullion. Consequently, the consultant requested the redemption fine and penalty to be vacated.Issue 2: Confiscation and Penalty JustificationThe Departmental Representative (DR) contended that due to the size of the silver bar (30.449 kgs), the burden of proof lay with the appellants under Section 123. However, the Member (T) analyzed the case records and rival submissions. It was noted that the Board's circular exempted certain cases from Section 123 enforcement, specifically mentioning situations where the silver bullion was not in the form of 30 kgs ingots and did not bear foreign markings. The Member found that the seizure was conducted by an officer lower in rank than required by the circular, and the silver quantity was less than 100 kgs with no foreign markings. Consequently, the burden of proof was not shifted to the appellant. The judgment set aside the impugned orders, allowing the appeal with consequential relief as per law.In conclusion, the judgment addressed the burden of proof under Section 123 of the Customs Act, 1962, and the justification for confiscation and penalty imposition based on duty paying document particulars. It emphasized the application of Board circulars, exemptions provided therein, and the importance of following prescribed procedures and criteria in such cases to prevent undue harassment and ensure fair treatment of individuals in possession of goods like silver bullion.