2018 (4) TMI 237 - AT - Customs

Absolute Confiscation - penalty u/s 112 of CA - smuggling - Gold bar biscuits - Held that - it is a fact that no document has been produced by both the appellants to prove that the said gold were procured with licit documents and that proper customs duty was paid on it - since the appellants have failed to justify the licit procurement of the gold bars, consequently, the seized gold cannot be considered as a bona fide baggage. Absolute confiscation upheld - quantum of penalty reduced - appeal allowed in part.

Summary

Issues: Appeal against the order of Commissioner (A) for confiscation of gold bars of foreign origin, imposition of penalty under Section 112 of the Customs Act, 1962, and justification of possession and procurement of gold.

Analysis:
1. Confiscation of Gold Bars: The appellants challenged the confiscation of two gold bars of foreign origin, weighing 928.230 grams, valued at ?25,52,632. The DRI recovered the gold, and statements revealed conflicting sources of procurement. The appellants failed to prove licit procurement or payment of customs duty, leading to the conclusion that the gold was not bona fide baggage. The Commissioner (A) relied on precedents like Uttamchand Sawal Chand Jain vs. UOI, emphasizing non-declaration of goods on which customs duty is payable as indicative of smuggling. The Tribunal found no infirmity in the order for absolute confiscation of the gold bars.

2. Imposition of Penalty: The original authority imposed a penalty of ?3,00,000 on each appellant under Section 112 of the Customs Act, 1962 for abetting in gold smuggling. The Commissioner (A) upheld this penalty. However, the Tribunal considered the penalty amount excessive given the circumstances and reduced it to ?50,000 for each appellant. The decision was based on the evaluation of facts and circumstances surrounding the case.

3. Justification of Possession and Procurement: The appellants argued that the gold belonged to Mr. Nayak's family, purchased in Mumbai and kept with Mr. Bhakta for safekeeping. They cited the absence of evidence calling into question the source of the gold bars. However, the Tribunal noted the contradictory statements made by the appellants regarding the origin of the gold bars and the lack of documentation proving licit procurement. The Tribunal emphasized the burden of proof on the appellants under Section 123 of the Customs Act, 1962, which was not discharged due to insufficient evidence.

4. Legal Precedents: Both parties cited various legal precedents to support their arguments. The appellants referenced cases like Gian Chand & Others vs. State of Punjab, while the respondent relied on decisions such as Gomathinayagam vs. CC, Trichy. The Tribunal considered these precedents but found them inapplicable to the specific facts and circumstances of the case.

In conclusion, the Tribunal dismissed the appeals except for the modification reducing the penalty imposed on each appellant to ?50,000. The judgment highlighted the importance of proving licit procurement and payment of customs duty for goods, emphasizing the burden of proof on the appellants in cases of confiscated items. The decision was based on a thorough analysis of statements, evidence, legal arguments, and relevant legal precedents.