TaxTMI 
TaxTMI 
2011 (4) TMI 181
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...., along with the Officers of Coochbehar Central Excise Division, apprehended one Md. Sahanat Ali while he got off from a bus arriving from Dinhata. On being asked, he submitted that he was carrying seven pieces of gold biscuits of foreign origin concealed inside his anklets. On being further asked, the said Md. Sahanat Ali stated that one Shri Rakesh Somani, son of Shri Nand Kishore Somani, had given the said seven gold biscuits for delivery to one Shri K. C. Banik at Coochbehar Mini Bus Stand and the gold biscuits were purchased illegally from different sellers who brought them in an unauthorized manner into India. He named another Shri Babla Ghosh of Dinhata and one Shri Sohin Bhai of Rangpur, Bangladesh. Md. Sahanat Ali was found to carry a small amount of Bhutanese Currencies in the pocket of the shirt worn by him and he stated that the Bhutanese Currencies were given to him by one Rakesh Somani for getting the same changed from any seller engaged in unauthorized money changing business. b) The gold was weighed in presence of Md. Sahanat Ali and two other witnesses. Md. Sahanat Ali could not produce any valid document in support of the gold biscuits and the Bhutanese ....
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.... Tribunal has dismissed the appeals brought by the three appellants. h) Being dissatisfied, Nand Kishore Somani alone has preferred the present appeal under Section 130 of the Customs Act. Mr. Roy, the learned Advocate appearing on behalf of the appellant, strenuously contended before us that the Tribunal below as well as the other authorities below erred in law in totally overlooking the fact that the customs authorities failed to discharge the burden of proving the fact that the gold biscuits were of foreign origin brought to India improperly by the appellant. Mr. Roy contends that his client has proved the receipt granted by a seller having appropriate licence to sell gold and thus, the moments of such receipt was produced and the initial burden was discharged, the onus shifted upon the customs authority to show that such receipt was a manufactured one. Mr. Roy contends that in the absence of examination of the seller of such gold biscuits, as reflected from the receipt produced by the appellant, the Tribunal below ought to have held that the appellant had discharged his initial onus of proving the fact that the said gold biscuits were not imported illegally ....
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.... Narendra Sharma, the alleged purchaser from M/s. Rara Brothers Pvt. Ltd. also was not produced before the Customs authorities and the notice issued to his address came back with the endorsement 'not found'. According to Mr. Bharadwaj, on consideration of all the aforesaid factors, the Tribunal below rightly held that the appellant could not explain lawful acquisition of those seven gold biscuits. He further prays for dismissal of the appeal. Therefore, the question that falls for determination in this appeal is whether the Tribunal below committed any substantial error of law in affirming the order of confiscation. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that seven gold biscuits were found in possession of an employee of the appellant before us. It is the specific case of the appellant that he purchased the same not by himself but through one Narendra Sharma from M/S Rara Brothers Pvt. Ltd and a receipt showing purchase of eight number of gold biscuits was produced. According to the appellant, in the past, he had already made ornaments from one of such biscuits. It appears that the sa....
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....erly imported. In the case before us, the appellant himself did not purchase but sent another person to purchase by cash but such person was not produced to prove the defence. Thus, the main defence that it was purchased by Narendra Sharma on behalf of the appellant was not proved. Mere production of receipt allegedly given by Narendra Sharma which neither mentioned the name of the appellant nor even of the said Narendra Sharma was no proof of the defence taken and at the same time, the appellant having failed to disclose any material to indicate that the identity of the gold mentioned in the said receipt tallied with seized ones, the learned Tribunal rightly dismissed the appeal. We, thus, find that the facts stated in the reported case conclusively disclosed that the appellant therein purchased the gold by account payee cheque whereas in this case, the appellant miserably failed to prove his defence. In the case of Samir Kumar Roy (Supra), the Kolkata Tribunal was dealing with a case where the appellant claimed that he had purchased the imported gold from one Mansukhlal T. Bavishi of Mumbai and produced Bill No. G/118 dated October 12, 1995. The statement of the seller ....
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....ent of the shop owner who used to purchase gold from M/s. Jalan Co. But the Department failed to verify from M/s. Jalan Co. as regards the seized articles. In such a case, it was held that the burden of proving lawful possession was discharged. In the case before us, the initial defence that the seized gold was purchased through Narendra Sharma by cash has not been established by mere production of a receipt of M/s. Rara when the receipt did not disclose the name of Narendra or the appellant nor was any description of gold indicated in the said receipt not even of the recent origin. We, thus, find that the said decision does not help the appellant in any way. The case of Commissioner of Customs (Prev.) vs. Puni Dhapa Kokeswara Rao (Supra), was one where the Tribunal at Kolkata was dealing with a case where the question was whether the statement made before a Customs Officer can be said to be a confessional statement. Such question was answered in the affirmative provided the same was voluntary. In the case before us, the Tribunal below on consideration of the entire facts and materials on record came to the conclusion that the initial burden that the appellant obtained th....