2024 (2) TMI 824 - AT - Customs

Confiscating absolutely seven gold bars having foreign make marking - Smuggling - Hyundai Verna Car - sufficient evidence to prove foreign origin goods - HELD THAT - It can be seen that authorities below have placed heavy reliance on the fact that gold seized from the possession of appellant had foreign make markings to conclude that the same are smuggled in nature. In this behalf it is observed that Hon ble Bombay High Court in the case of STATE OF MAHARASHTRA VERSUS PRITHVIRAJ POKHRAJ JAIN 1973 (6) TMI 68 - BOMBAY HIGH COURT has held that foreign markings are not sufficient to establish the foreign origin of the goods and that such markings do not speak for themselves and are in the nature of hearsay evidence. It is held in the said judgment that no presumption about the foreign origin of goods arises from the foreign markings unless there is evidence to show that the same were put by the particular foreign company in ordinary course of business. Admittedly, there is no evidence in the present case that the foreign markings appearing on the seized gold bars had indeed been put by the foreign companies whose markings they purport to be and that therefore as laid down in the aforesaid judgment of the High Court no presumption of the foreign origin of the goods can arise from such markings. It is further observed that even when established that the seized Gold Bars were of foreign origin, that by itself does not establish the smuggled nature of the gold, as import of gold into India is not absolutely prohibited and there is large quantity of gold which is legally imported and is available for sale in the local market and hence merely because the seized gold had foreign markings that itself is not sufficient to infer that the same was smuggled into India. Reasonable belief cannot be based on suspicion or speculation or merely on the ground that the person from whom seizure was effected was unable to account for the same and that to form reasonable belief there must be some evidence to show that the goods were brought into the country contrary to prohibition imposed by law. Since such prima facie evidence to form reasonable belief that the goods were of foreign origin and were brought into the country illegally was lacking, mere circumstance that after purchasing the gold bars from the sellers of gold at Surat and carrying it to Delhi without any further evidence to show that the gold bars were brought into India from abroad illegally cannot afford a ground for forming the reasonable belief that the same were smuggled into India. In view of above, there exist no circumstance for forming a reasonable belief that the seized gold is smuggled gold and consequently, section 123 has no application. As regards confiscation under section 119 of Customs Act, 1962 upheld in respect of nine gold-bars on the premise that the said gold-bars were obtained without any bill/invoice/bill of entry etc. and were used for concealment of smuggled goods in order to camouflage the identity of seven foreign origin smuggled gold bars; Undisputedly, the gold bars were not found in concealed state from the appellants. There is no evidence to show that appellant knew or had reason to believe that the gold bars were of smuggled nature - the seven gold bars itself cannot held as foreign origin smuggled gold; the nine gold bars cannot be said as imported contrary to any prohibition imposed by or under the Act or any other law as provided under section 111(d) of the Act. In that view, imposition of fine of Rs. 7,00,000/- in lieu of confiscation under section 125 of the Customs Act, 1962 imposed as regards the above nine gold bars cannot be sustained. Hyundai Verna Car - HELD THAT - Admittedly appellant was found in possession of the car, undisputedly seized gold was not found concealed manner in the car, further in view of above discussion, it is not established that seized gold was smuggled one. Consequently, section 115 of the Act is not applicable and hence confiscation of car and redemption fine so imposed also cannot be sustained. The impugned order is liable to be set aside. Since confiscation of gold is not tenable, fine and penalty is also cannot be sustained. Accordingly, the impugned orders are set aside - Appeal allowed.

Issues Involved:
1. Confiscation of seven gold bars with foreign markings.
2. Confiscation of nine gold bars of Indian origin.
3. Confiscation of eight gold bars purchased in the past.
4. Confiscation of Hyundai Verna car.
5. Imposition of penalties on appellants.

Summary:

Issue 1: Confiscation of Seven Gold Bars with Foreign Markings
The appellants argued that the seven gold bars were not proven to be of foreign origin, as the verification by the gold assayer only confirmed purity, weight, and value, not origin. The Tribunal observed that foreign markings alone are insufficient to establish foreign origin or smuggled nature, as per the judgments in *State of Maharashtra v Prithviraj Pokhraj Jain* and *Lalchand D. Kothari v CC*. The Tribunal concluded that there was no evidence to form a reasonable belief that the gold was of foreign origin or smuggled, thus section 123 of the Customs Act was not applicable. Consequently, the confiscation of the seven gold bars was not sustained.

Issue 2: Confiscation of Nine Gold Bars of Indian Origin
The Tribunal noted that the nine gold bars were not found in a concealed manner and there was no evidence that the appellants knew or had reason to believe that the gold bars were smuggled. The report from the Deputy Director Forensic Science Laboratory did not find any incriminating evidence. The Tribunal held that the confiscation under section 119 and the imposed fine of Rs. 7,00,000/- were not sustainable.

Issue 3: Confiscation of Eight Gold Bars Purchased in the Past
The Tribunal found that the confiscation was based solely on the statements of the appellants, which were not reliable as they were not examined or cross-examined per section 138B of the Act. The Tribunal cited *Jindal Drugs Pvt Ltd V UOI* and *J K Cigarettes Ltd V. Collector of Central Excise*, holding that such statements are not relevant evidence. Therefore, the confiscation and the redemption fine of Rs. 21,60,000/- were not tenable.

Issue 4: Confiscation of Hyundai Verna Car
The Tribunal observed that the gold was not found concealed in the car and that it was not proven that the gold was smuggled. Consequently, section 115 of the Act was not applicable, and the confiscation of the car and the redemption fine imposed were not sustained.

Issue 5: Imposition of Penalties on Appellants
Since the confiscation of the gold was not tenable, the penalties imposed on the appellants under section 112(b) of the Act were also not sustainable.

Conclusion:
The Tribunal set aside the impugned orders, allowing the appeals with consequential relief in accordance with the law.

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