2021 (7) TMI 630 - AT - Customs

Smuggling - Gold Bar - mis-declaration of goods - burden of proof u/s 123 of Customs Act, 1962 - right to claim ownership / redemption of the goods - It is argued by the ld. Counsel that due to tampering of the serial number on the gold bar, it cannot be ascertained whether the gold has suffered Customs duty - HELD THAT - There is no dispute that the parcel was mis-declared. Although the appellants knew that the parcel contained gold bar, they did not give proper instructions to declare the goods correctly before the Customs authorities. So also they did not furnish necessary documents for transportation of such gold by airlines. Only after the goods were detained by the airlines and coming to know that the airlines has informed the Customs authorities, a mail was sent by Sri Ravi Nakath along with sales invoice dated 23.12.2016. If the gold bar was legally purchased by the appellants, they ought not to have shied away from declaring the goods and furnishing necessary documents while booking the parcel itself. Undisputedly, the gold bar has foreign markings and is an imported gold bar. The serial number on the gold bar was seen hammered / tampered. Such serial number helps the Customs authorities to trace whether the gold bar has suffered Customs duty. The serial number having been defaced and tampered would raise a strong inference that it is smuggled gold. Further, the serial number is not mentioned in any of the invoices - there is no explanation why VAT was collected as per invoice instead of CST. Sri Sunil Cherian of Kerala Fashion Jewellery has not able to explain why the serial number on the gold bar is seen tampered. It is also stated by him that he has not sold any gold bar with tampered serial number. Though this invoice is issued to Venus Creation, Kolkata, Sri Sunil Cherian says that he handed over the gold bar to one Vimal. Sri Sunil Cherian has not been able to identify whether the gold bar is the same one sold by him as per invoice 875 on 21.12.2016. The term smuggled goods‟ means goods of foreign origin and imported from abroad. In the present case, there is no dispute that the goods are of foreign origin. As already discussed, the defacing of serial number on the gold bar itself indicates that it is smuggled gold. The appellants who claim the gold to have been legally procured have to produce documents evidencing payment of duty as well as documents evidencing their legal ownership / possession. At the time of booking the parcel, the appellants have not furnished the required documents for transportation of imported goods - The appellants have not been able to discharge their burden of proof required under section 123 of Customs Act, 1962. The plea of appellants to permit redemption of the gold also cannot be considered as they have not been able to establish possession / ownership of the gold bar. The seller Kerala Fashion Jewellery stated that he has not sold any gold bar with tampered serial number. The accounts of Sri Rishi Nakath show that he has sold only gold jewellery to Sri Ravi Nakath. So as per these accounts there is no sale of gold bars by Venus Creation to Sri Ravi Nakhat - the department has succeeded in establishing the allegations in the Show Cause Notice. The appellants have not been able to establish the defense pleaded by them or their claim of ownership over the gold bar. Appeal dismissed.

Summary

Issues Involved:
1. Mis-declaration of goods.
2. Tampering of the serial number on the gold bar.
3. Legitimacy of the purchase and ownership documents.
4. Compliance with Section 123 of the Customs Act, 1962.
5. Right to claim ownership and redemption of the gold bar.

Detailed Analysis:

1. Mis-declaration of Goods:
The parcel was declared as "docs and samples" but contained a gold bar weighing one kilogram. This mis-declaration was a significant factor, indicating an attempt to conceal the true nature of the goods. The appellants did not provide necessary documents for transporting gold by airlines, only producing a sales invoice after the goods were detained. This behavior suggested that the appellants were aware of the need to hide the contents of the parcel.

2. Tampering of the Serial Number on the Gold Bar:
The gold bar had foreign markings, and its serial number was hammered/tampered. This tampering raised a strong inference that the gold was smuggled, as the serial number is crucial for tracing whether Customs duty has been paid. The absence of the serial number in the invoices further supported this inference.

3. Legitimacy of the Purchase and Ownership Documents:
The appellants claimed that the gold bar was purchased from Kerala Fashion Jewellery via Invoice No. 875 dated 21.12.2016. However, verification revealed discrepancies:
- The invoice number 875 was not part of a running serial number series.
- VAT was collected instead of CST, which was unusual.
- The seller, Sunil Cherian, could not confirm the sale of the gold bar with a tampered serial number.
- Venus Creation's VAT returns showed a sale of gold jewelry, not a gold bar, and they lacked a license to sell gold bars to individuals.
- The price discrepancies in the invoices indicated an attempt to cover up the transaction.

4. Compliance with Section 123 of the Customs Act, 1962:
Under Section 123, the burden of proof lies on the person from whose possession the goods were seized to prove that they are not smuggled. The appellants failed to provide credible documents to prove the legal purchase and payment of duty for the gold bar. The invoices were considered concocted and an afterthought, failing to establish the legal procurement of the gold.

5. Right to Claim Ownership and Redemption of the Gold Bar:
The appellants' plea for the redemption of the gold bar was denied as they could not establish legal ownership or possession. Kerala Fashion Jewellery stated they did not sell any gold bar with a tampered serial number, and Venus Creation's accounts showed a sale of gold jewelry, not a gold bar. Therefore, the appellants' claim of ownership was not substantiated.

Conclusion:
The department successfully established the allegations in the Show Cause Notice. The appellants failed to prove their defense or claim ownership over the gold bar. Consequently, the appeals were dismissed, and the order of confiscation was upheld.