2007 (10) TMI 290 - AT - Customs

Burden to prove smuggling gold biscuits and gold coins bearing foreign markings In a locker of the appellant with State Bank of India, 975 gms. of gold ornaments, 345 gms. of primary gold including two biscuits having SUISSE markings and coins were found. The appellant in his statement has deposed that two foreign marked biscuits of one ounce each were gifted to his daughter on her wedding as was customary in their caste that near and dear relatives give such type of gifts along with cash. As regards the other 4 coins, he deposed that they were in the possession of his mother and after her death the same were inherited by him as he was the only son. How his mother acquired the same, for this he had no explanation to offer Held that department failed to provide the proof of smuggling the explanation offered by the appellant found sufficient The benefit of doubt extended to appellant appeal allowed.

Summary

Issues:
Confiscation of foreign marked gold, confiscation of gold biscuits and coins, burden of proof on smuggling, reasonable explanation for possession.

Confiscation of Foreign Marked Gold:
The appellant, an official of Indian Oil Corporation, had foreign marked gold seized from his locker by the Customs Department. The Commissioner (Appeals) released two foreign brand gold biscuits based on evidence of legal import but upheld the confiscation of other items. The appellant claimed the gold was gifted and inherited, but the Commissioner rejected the explanation as insufficient. The appellant argued that the burden of proof for smuggling lies with the Revenue, citing precedents. The Tribunal found that the goods were constructively seized by the CBI before Customs, placing the burden on the Department to prove smuggling. As the appellant provided reasonable explanations and was not proven to be a smuggler, the Tribunal allowed the appeal, setting aside the confiscation order.

Confiscation of Gold Biscuits and Coins:
The dispute centered on the confiscation of two small gold biscuits and four gold coins with foreign markings. The appellant claimed the biscuits were gifts at his daughter's wedding and the coins were inherited from his mother. The Commissioner rejected the explanations, stating the appellant failed to prove the legitimacy of acquisition. The Tribunal noted the appellant's reasonable explanations, customary gifting practices, and inability to provide detailed guest information. By extending the benefit of the doubt to the appellant and lacking evidence of smuggling, the Tribunal allowed the appeal, overturning the confiscation of the gold biscuits and coins.

Burden of Proof on Smuggling:
The appellant argued that the initial burden to prove smuggling rested with the Revenue, emphasizing the sequence of seizure by the CBI before Customs involvement. Citing legal precedents, the appellant contended that without evidence of smuggling, the burden was not discharged by the Department. The Tribunal agreed, stating that the lack of proof of smuggling and the appellant's reasonable explanations warranted allowing the appeal and setting aside the confiscation order.

Reasonable Explanation for Possession:
The appellant provided explanations for the origin of the seized gold items, attributing them to gifting customs and inheritance from his mother. Despite the Commissioner's skepticism and rejection of the explanations, the Tribunal found the appellant's justifications reasonable, considering his official position and lack of evidence linking him to smuggling activities. The Tribunal granted relief to the appellant, overturning the confiscation order and emphasizing the absence of concrete evidence supporting the smuggling allegations.

This detailed analysis of the judgment highlights the key issues surrounding the confiscation of foreign marked gold, the disputed gold biscuits and coins, the burden of proof on smuggling, and the appellant's reasonable explanations for possession, culminating in the Tribunal's decision to allow the appeal and provide relief to the appellant.