2016 (2) TMI 930 - HC - Customs

Legalilty of import of gold biscuit confiscated - onus of proof as to legal import lies on person who possesses such goods or who holds to be the owner of such goods under section 123 of the Customs Act, 1962 - whether the biscuits recovered from the second respondents possession and claimed to have been imported by M/s. MMTC are the same and as to whether the respondents have been able to discharge the legal onus placed upon them under the provisions of section 123? - Held that - The burden of proof lay on the petitioner to discharge in the matter of proving the gold biscuits said to belong to him were not smuggled goods. By producing documents, which could not be disputed, the onus shifted to the department. The department sought to trace the origin of the goods to the identified consignment imported by MMTC. However, the department must do something more to demonstrate that the gold biscuits confiscated belonging to the petitioner were not duly purchased by the petitioner under documents produced to enable confiscation thereof as smuggled goods. The Tribunal to revisit the matter and give its finding as expeditiously as possible upon allowing opportunity of hearing - writ petition disposed off - matter on remand.

Summary

Issues: Ownership of confiscated gold biscuits, burden of proof under Customs Act, judicial review under Article 226 of the Constitution of India, requirement of description in sale documents

Ownership of Confiscated Gold Biscuits:
The Customs Excise and Service Tax Appellate Tribunal (CESTAT) found that the petitioner claimed ownership of the gold biscuits confiscated, which were imported into India. The Tribunal noted that the onus to prove legal importation of the gold lay on the person claiming ownership. The petitioner produced documents showing legal purchase from a seller in Ahmedabad, who had legally imported the gold. Enquiries confirmed the purchase chain, but discrepancies in markings raised doubts. The Tribunal questioned whether the confiscated biscuits matched the legally imported ones. It was crucial to establish the authenticity of the markings to determine legality.

Burden of Proof under Customs Act:
The petitioner challenged the Tribunal's decision through a judicial review under Article 226 of the Constitution of India. The petitioner argued that the department wrongly deemed the gold as smuggled due to discrepancies in markings. The petitioner contended that the burden of proof shifted to the department once valid documents were presented. The department failed to show when the gold deviated from the legally imported consignment. The legal requirement for marking descriptions in sale documents was emphasized, and the department's failure to trace the gold's origin accurately was highlighted.

Judicial Review under Article 226 of the Constitution of India:
During the judicial review, the petitioner's counsel argued that the department's conclusion of smuggling was unjustified. The lack of marking descriptions in sale documents did not automatically imply smuggling. The petitioner had purchased the gold from a legitimate source, and the burden of proof had shifted to the department. The court acknowledged the importance of accurate documentation in determining the legality of imported goods. The court set aside the Tribunal's order affecting the petitioner and instructed a reevaluation with proper consideration of the evidence.

Requirement of Description in Sale Documents:
Both parties agreed on the necessity of marking descriptions in sale documents to verify the origin and legality of imported goods. The department failed to demonstrate the point at which the markings on the gold biscuits were recorded in the sale documents. The absence of specific markings raised doubts about the gold's authenticity and legal importation. The court emphasized the department's obligation to provide concrete evidence to refute the petitioner's documented purchase history. The lack of detailed descriptions in the sale documents complicated the determination of the gold's legal status.