2019 (8) TMI 885 - AT - Customs

Smuggling - Gold - non-production of documents relating to the gold - HELD THAT - The Investigating Officer had not verified the party M/s.XEHAAN Capital Services, who has sold the goods to M/s.Prerak Gems. It is seen that Respondents produced the documents which are required to be verified by the Investigating Officers, which they failed to do so. There is no reason to interfere with the order of the Commissioner(Appeals) and the same is sustained - appeal dismissed - decided against Revenue.

Summary

Issues:
- Confiscation of seized goods and imposition of penalty set aside
- Burden of proof on the Respondents
- Failure of the Department to prove smuggled nature of goods
- Verification of documents by Investigating Officers

Confiscation of seized goods and imposition of penalty set aside:
The case involved the confiscation of one Yellow Metal bar believed to be gold of foreign origin, seized during a search operation. The Respondents, after initial statements, provided evidence of licit procurement of the gold, which was confirmed by the supplier. The Commissioner(Appeals) set aside the confiscation and penalties imposed by the Adjudicating authority. The Tribunal upheld this decision, noting that the Respondents had discharged the burden of proof, shifting the onus to the Department, which failed to prove the smuggled nature of the goods. The Tribunal emphasized that suspicion or presumption could not substitute evidence for confiscation under the Customs Act, 1962.

Burden of proof on the Respondents:
The Revenue contended that the Respondents did not produce documents relating to the gold at the time of interception and failed to co-relate the documents during the proceedings. However, the Commissioner(Appeals) found that the Respondents had submitted evidence of licit procurement, supported by the supplier's confirmation. The Tribunal agreed that the Respondents had adduced credible evidence to discharge the burden of proof, as required under Section 123 of the Customs Act.

Failure of the Department to prove smuggled nature of goods:
The Department was criticized for not verifying the party that sold the goods to the Respondents, despite the documents being produced for verification. The Tribunal noted that the Investigating Officers failed to conduct necessary verifications, leading to a lack of evidence supporting the Department's claims of the gold being of foreign origin or smuggled into India. The Tribunal found that the Department was acting on no evidence, emphasizing the importance of proper verification procedures.

Verification of documents by Investigating Officers:
The Tribunal highlighted the failure of the Investigating Officers to verify the documents provided by the Respondents, specifically the party that sold the goods to the supplier. This lack of verification was deemed crucial in the case, as it impacted the evidentiary support for the Department's allegations. The Tribunal's decision to dismiss the Appeals filed by the Revenue was based on the failure to conduct necessary verifications, as highlighted by the learned Counsel of the Respondent and supported by relevant case laws cited during the proceedings.