2017 (10) TMI 91 - AT - Customs

Absolute Confiscation - Penalty - Gold Buscuit - non-production of any valid document of the possession of the foreign origin gold - Held that - the foreign origin gold is a notified item u/s 123 of the Act, 1962 and the burden of proof lies with the person from whose possession the goods were seized - the Ld. Advocate stated that the appellant purchased the seized gold upon payment through RTGS. But no evidence was placed. Considering the value of gold, the quantum of penalty imposed on the appellants should be reduced. Penalty imposed on Shri Utpal Kr. Dey and Shri Dipak Sen is reduced to ₹ 5,00,000/- and ₹ 1,00,000/- respectively - absolute confiscation upheld - decided partly in favor of appellant.

Summary

Issues:
1. Confiscation of seized gold under Customs Act, 1962
2. Imposition of penalty on individuals involved
3. Burden of proof in cases involving foreign origin goods

Analysis:
1. The case involved the confiscation of seized gold under sections 111 (b) and 111 (d) of the Customs Act, 1962. The officers found yellow metal in biscuit form with foreign markings in the possession of an individual who could not produce valid documents for the same. A show cause notice was issued leading to the confiscation of the gold and imposition of penalties by the Commissioner of Customs (Preventive).

2. The appellants argued that the primary gold was purchased with proper documentation and used for making gold biscuits for better market value. They contended that the source of procurement was disclosed, and absolute confiscation was not justified. The Adjudicating Authority was urged to consider releasing the gold on payment of a Redemption Fine. However, the Revenue supported the findings of the Adjudicating Authority.

3. The Tribunal noted that foreign origin gold is a notified item under the Customs Act, placing the burden of proof on the possessor. Despite claims of proper purchase documentation, the appellants failed to provide evidence to support their assertions. The Tribunal referenced previous cases where documents like purchase bills and receipts were crucial in establishing legal possession and sale of gold. In the absence of concrete evidence, the Tribunal upheld the confiscation of the gold but reduced the penalties imposed on the appellants to &8377; 5,00,000 and &8377; 1,00,000 respectively.

This judgment highlights the importance of substantiating claims with documentary evidence in cases involving the possession and origin of goods under the Customs Act. The burden of proof lies with the possessor, and failure to provide adequate documentation can lead to confiscation and penalties. The Tribunal considered precedents where proper documentation played a pivotal role in determining the legality of possession and sale of goods. Ultimately, while the confiscation of the gold was upheld, the penalties imposed on the individuals were reduced based on the value of the seized items.