2011 (11) TMI 237 - AT - Customs

Seizure of gold biscuits of foreign origin on ground of illicit possession / import /purchase - Absolute confiscation u/s 111(d) of Customs Act 1962 penalties imposed on assessee-firm, partners, employees (from whose possession biscuits are recovered), other party Held that - The appellants in the present case have been trying to cover the transaction with three sale vouchers of M/s. S.M. Jewellers. However, no explanation is provided to justify the absence of name of the appellants, firm in the sales invoices and for not producing the original copy of the invoice. Further, there being no other evidence produced, we hold that the appellants have not been able to discharge the onus placed upon them showing the legal importation of the gold in question. Consequently, it is held that gold biscuits in question are smuggled. There can be no such reason for absolute confiscation of gold after liberalised policy for its import has came into force since 1991 therfore, absolute confiscation of the goods ordered by the Commissioner is not maintainable. Option is given to assessee to pay fine in lieu of confiscation. Penalty on assessee and other party (who gave false evidence ) are upheld, penalty on employees are reduced and since firm is subject to penalty, penalty on partners are not justified.

Summary

Issues Involved:
1. Legality of the confiscation of gold biscuits.
2. Validity of the penalties imposed on various individuals and entities.
3. Determination of whether the gold biscuits were legally imported or smuggled.
4. Appropriateness of absolute confiscation versus the option of redemption.

Detailed Analysis:

1. Legality of the Confiscation of Gold Biscuits:
The appeals arise from a common order where 36 gold biscuits of foreign origin, valued at Rs. 21,83,500.80, were confiscated under Section 111(d) of the Customs Act, 1962. The confiscation was based on the inability of the individuals from whom the gold was seized to produce documents proving licit possession or import. The gold biscuits were found to be of 24-carat purity and of Swiss origin, as verified by a government-approved assayer. The primary issue was whether the gold biscuits were legally imported or smuggled.

2. Validity of the Penalties Imposed:
Penalties were imposed on multiple individuals and entities under Section 112(b)(i) of the Customs Act, 1962. The penalties included:
- M/s. Panna Lal Banarasi Das: Rs. 2 lakhs
- Shri Pradeep Jain: Rs. 1 lakh
- Shri Sandeep Jain: Rs. 1 lakh
- Shri Arvind Mishra: Rs. 50,000
- Shri Laxmikant Agnihotri: Rs. 50,000
- Shri Mahesh Kumar Katta: Rs. 1 lakh

The Tribunal upheld the penalty on M/s. Panna Lal Banarasi Das but set aside the penalties on Shri Pradeep Jain and Shri Sandeep Jain, as they were partners of the firm. The penalties on Shri Arvind Mishra and Shri Laxmikant Agnihotri were reduced to Rs. 25,000 each, considering they were employees acting under instructions. The penalty on Shri Mahesh Kumar Katta was upheld due to his role in providing false evidence.

3. Determination of Whether the Gold Biscuits Were Legally Imported or Smuggled:
The appellants produced three invoices dated 16.10.02 from M/s. S.M. Jewellers to claim the gold was legally procured. However, these invoices were produced after the seizure and did not show the name of the purchaser. The adjudicating authority scrutinized the invoices and found discrepancies, such as different rates of gold per tola and the absence of original copies. The Tribunal concluded that the appellants failed to prove the legal importation of the gold biscuits, thus determining them to be smuggled.

4. Appropriateness of Absolute Confiscation Versus the Option of Redemption:
Section 125 of the Customs Act, 1962, allows for the option to pay a fine in lieu of confiscation. The Tribunal noted that absolute confiscation is not justified, especially given the liberalized policy for gold import since 1991. It was held that the absolute confiscation ordered by the Commissioner was not maintainable. Instead, the Tribunal allowed M/s. Panna Lal Banarasi Das to redeem the gold on payment of a redemption fine of 10% of the value, amounting to Rs. 2,18,350, considering the long delay in releasing the goods. Additionally, customs duties as applicable under Section 125(2) were to be paid.

Conclusion:
The appeals were disposed of with the Tribunal allowing the redemption of the confiscated gold on payment of a fine and upholding the penalties on certain individuals while reducing or setting aside others. The Tribunal emphasized the need for each case to be decided based on the evidence available, and in this case, the evidence did not support the claim of legal importation of the gold biscuits.