2011 (4) TMI 181 - HC - Customs

Confiscation - Penalty - whether the Tribunal below committed any substantial error of law in affirming the order of confiscation - It is the specific case of the appellant that he purchased the Gold biscuits 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 - It appears that the said Narendra Sharma, who as an agent of the appellant allegedly purchased eight gold biscuits by cash payment, has not been examined or produced before the Customs Authorities to verify the allegation - 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 - Decided against the assessee

Summary

Issues Involved:
1. Legality of confiscation under Sections 111(b) and 111(d) of the Customs Act, 1962.
2. Imposition of penalty under Section 112 of the Customs Act, 1962.
3. Burden of proof regarding the lawful acquisition of gold biscuits.
4. Validity of the appellant's defense and the evidence provided.
5. Reliance on the retracted confession of Md. Sahanat Ali.

Detailed Analysis:

1. Legality of Confiscation under Sections 111(b) and 111(d) of the Customs Act, 1962:
The appeal was directed against the order of the Customs, Excise & Service Tax Appellate Tribunal upholding the confiscation of gold biscuits under Sections 111(b) and 111(d) of the Customs Act, 1962. The confiscation was based on the reasonable belief that the gold biscuits were imported into India in contravention of the Foreign Trade Development and Regulations Act, 1992, rendering them liable for confiscation under Sections 111 and 121 of the Customs Act. The appellant's employee, Md. Sahanat Ali, was apprehended with the gold biscuits and could not produce any valid documents supporting their lawful importation.

2. Imposition of Penalty under Section 112 of the Customs Act, 1962:
The adjudicating authority imposed personal penalties on the appellants under Section 112 of the Customs Act, considering the gravity of the offenses. The Tribunal confirmed these penalties, and the appellant's appeal was dismissed. The appellant argued that the customs authorities failed to prove that the gold biscuits were of foreign origin and improperly brought into India.

3. Burden of Proof Regarding the Lawful Acquisition of Gold Biscuits:
The appellant contended that he had discharged the initial burden of proof by producing a receipt from a licensed seller. However, the Tribunal found that the receipt did not indicate that the seized gold biscuits were the same as those mentioned in the receipt. The appellant failed to produce Narendra Sharma, who allegedly purchased the gold biscuits, for examination. The Tribunal concluded that the appellant did not discharge the initial burden of proving the lawful acquisition of the gold biscuits.

4. Validity of the Appellant's Defense and the Evidence Provided:
The appellant claimed that the gold biscuits were purchased through Narendra Sharma from M/s. Rara Brothers Pvt. Ltd. The Tribunal noted that the receipt did not mention the appellant or Narendra Sharma and lacked a description of the gold biscuits. The appellant also failed to provide evidence of the conversion of one gold biscuit into an ornament. The Tribunal held that mere production of a receipt was insufficient to discharge the initial burden of proof, and the appellant's defense was not credible.

5. Reliance on the Retracted Confession of Md. Sahanat Ali:
The appellant argued that the confession of Md. Sahanat Ali, which was later retracted, should not have been relied upon. The Tribunal, however, based its findings on the overall evidence, not solely on the confession. The Tribunal concluded that the appellant failed to prove the lawful acquisition of the gold biscuits and upheld the order of confiscation and penalty.

Conclusion:
The High Court dismissed the appeal, finding no substantial error of law in the Tribunal's decision. The Court held that the appellant failed to prove the lawful acquisition of the gold biscuits and that the Tribunal rightly affirmed the order of confiscation and penalty. The appeal was devoid of substance and dismissed without any order as to costs.