2020 (4) TMI 208 - AT - Customs

Stay of operation of impugned Order-In-Appeal - Smuggling - Gold - admissible evidence - foreign marking of goods - Absolute Confiscation - HELD THAT - Though the contention of Shri Rajesh Kumar Seth is that Revenue could not establish that the goods were brought from Nepal, however, he was also not in a position to produce any document which could establish as to how he got possession of gold. Therefore, the impugned Order-In-Appeal is modified and the redemption fine reduced to ₹ 1 lakhs and penalty on Shri. Rajesh Kumar Seth to ₹ 1 lakhs under Section 112 of Customs Act, 1962 - appeal allowed in part.

Summary

Issues: Appeal arising out of common impugned Order-In-Appeal - Stay of operation of impugned Order-In-Appeal - Allegation of gold smuggling - Interpretation of foreign markings on goods - Burden of proof on prosecution - Evidence required to establish foreign origin of goods - Violation of Customs Act, 1962 - Reduction of redemption fine and penalty.

Analysis:
The judgment pertains to two appeals arising from a common impugned Order-In-Appeal, one filed by the Revenue and the other by an individual. The Revenue alleged that 1 Kg gold of 995 purity, seized from the individual, was of third country origin and brought into India from Nepal, violating Customs Act, 1962. The Revenue contended that the gold should be absolutely confiscated due to foreign markings as 'Valcambi Suisse'. The Commissioner (Appeals) allowed the release of gold on a redemption fine of ?5 lakhs, leading the Revenue to appeal. The individual's representatives argued that foreign markings alone cannot prove foreign origin, citing a Bombay High Court case. They emphasized the lack of evidence establishing the gold's foreign origin and the failure to prove violation of Notification No.09/1996-Cus.

The Tribunal considered both sides' submissions and found that while the Revenue failed to prove the gold's origin from Nepal, the individual also lacked documentation to establish how he acquired the gold. Consequently, the Tribunal modified the impugned Order-In-Appeal, reducing the redemption fine to ?1 lakh and imposing a penalty of ?1 lakh on the individual under Section 112 of the Customs Act, 1962. As a result, the individual's appeal was partially allowed by modifying the impugned Order-In-Appeal, while the Revenue's appeal was dismissed. The miscellaneous application for staying the operation of the impugned Order-In-Appeal was also disposed of.

In conclusion, the judgment addressed issues related to the burden of proof in cases of alleged gold smuggling, the interpretation of foreign markings on goods as evidence, and the requirements for establishing foreign origin under the Customs Act, 1962. The decision highlighted the importance of providing sufficient evidence to support allegations and the consequences of failing to do so in customs-related cases.