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2016 (12) TMI 891 - AT - CustomsImposition of penalty u/s 112 of the Customs Act, 1962 - carrying of foreign marked gold biscuits - Held that - A penalty of ₹ 2.5 lakhs has been imposed upon the appellant under Section 112 of the Customs Act, 1962 for carrying foreign marked gold biscuits. During interception on 27.12.2006 appellant could not produce any receipt/document showing legal acquisition of such gold of foreign origin. As per section 123 of the Customs Act, 1962 onus was on the appellant to establish legal acquisition of foreign marked gold. In his statements recorded on 27.12.2006 and 28.12.2006 appellant admitted that he was carrying gold of foreign origin from Imphal and had the knowledge of its foreign origin. It is also observed from his reply to the show cause notice that said gold of foreign origin was carried in a concealed manner. Further appellant is a repeated offender and has earlier been penalized for smuggling of gold which has also been upheld by the Apex Court in the earlier proceedings. Based on the above observations appellant does not have a case for waiver of penalty which is correctly imposed under Section 112 of the Customs Act, 1962. Appeal filed by the appellant is required to be dismissed - appeal dismissed - decided against appellant.
Issues:
1. Upholding penalty under Section 112 of the Customs Act, 1962 for possession of smuggled gold. 2. Appellant's knowledge of the foreign origin of the gold. 3. Previous penalties imposed on the appellant for similar offenses. Analysis: Issue 1: Upholding penalty under Section 112 of the Customs Act, 1962 The appellant filed an appeal against Order-in-Appeal No.06/CUS(A)/GHY/10 dated 21.02.2010, where the First Appellate Authority upheld the penalty imposed under OIO dated 24.02.2009. The penalty of ?2.5 lakhs was imposed under Section 112 of the Customs Act, 1962 for carrying foreign marked gold biscuits without proper documentation of legal acquisition. The Adjudicating Authority found the appellant guilty and imposed the penalty, which was upheld by the First Appellate Authority. Issue 2: Appellant's knowledge of the foreign origin of the gold The Revenue argued that the appellant was found with smuggled gold biscuits and yellow metal bars, and the appellant admitted to knowing the foreign origin of the gold. The Adjudicating Authority specifically noted the appellant's repeated offense and lack of legal acquisition documentation for the foreign marked gold. The appellant's previous involvement in smuggling activities, as evidenced by a previous penalty upheld by the High Court, further supported the argument that the penalty under Section 112 of the Customs Act, 1962 was justified. Issue 3: Previous penalties imposed on the appellant for similar offenses The Tribunal considered the appellant's history of smuggling offenses, including a previous penalty upheld by the High Court. The appellant's failure to provide legal acquisition documentation for the foreign marked gold, coupled with his admission of knowledge of its foreign origin, led to the conclusion that the penalty imposed under Section 112 of the Customs Act, 1962 was appropriate. The Tribunal found no grounds for waiving the penalty and dismissed the appeal filed by the appellant. In conclusion, the Tribunal upheld the penalty imposed under Section 112 of the Customs Act, 1962 on the appellant for possession of smuggled gold, considering the appellant's knowledge of the gold's foreign origin and his history of similar offenses. The appeal was dismissed, and the penalty of ?2.5 lakhs was upheld.
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