2008 (3) TMI 88 - AT - Customs

Gold biscuits with foreign marks - seizure - appellant produced evidence regarding legal purchase of the gold biscuits - gold biscuits were procured from other bullion dealer which was duly reflected in account books. Income Tax dept. had also dropped proceedings on the ground that entire transaction in respect of gold bars were legally accounted transportation of gold biscuits in shoes is normal trade practice - in absence of evidence to prove smuggling, confiscation is not justified

Summary

Issues Involved:
1. Confiscation and penalties related to 500 gold biscuits seized.
2. Ownership claims and licit possession of the gold biscuits.
3. Burden of proof under Section 123 of the Customs Act, 1962.
4. Validity of trade practices and documentary evidence.
5. Conflicting findings between customs and income-tax authorities.
6. Mode of transportation of gold biscuits.
7. Separate judgments by judicial and technical members.

Detailed Analysis:

Confiscation and Penalties:
The adjudicating authority ordered the absolute confiscation of 500 gold biscuits and imposed penalties on the appellants under Section 112 of the Customs Act, 1962. The appellants contested the confiscation and penalties, claiming ownership and licit possession of the gold biscuits.

Ownership Claims and Licit Possession:
- Shri Vijay D. Patel (Paras Bullions) claimed ownership of 200 gold biscuits with the mark "CREDIT SUISSE." He provided evidence of purchase from M/s. Riddhi Siddhi Bullion Ltd., corroborated by statements from the seller and supporting documents.
- Shri Shailesh D. Patel (S.K. Jewellers) claimed ownership of 300 gold biscuits with various foreign marks. He also provided evidence of purchase from Paras Bullions, supported by statements and documents from suppliers such as M/s. K.L. Choksi and Amrapali Industries Ltd.

Burden of Proof under Section 123:
Section 123 of the Customs Act, 1962, places the burden of proof on the person from whose possession the goods were seized to prove that they are not smuggled. The adjudicating authority held that the appellants did not discharge this burden. However, the judicial member found that the appellants provided sufficient evidence to prove licit possession, while the technical member disagreed, emphasizing the lack of immediate documentary evidence at the time of interception.

Validity of Trade Practices and Documentary Evidence:
The judicial member accepted the trade practice of issuing bills a few days after the transaction and found the documentary evidence provided by the appellants credible. The technical member, however, found the preparation of invoices after the seizure suspicious and indicative of an attempt to cover up the illicit nature of the gold.

Conflicting Findings Between Customs and Income-Tax Authorities:
The judicial member noted that the income-tax authorities accepted the transactions as legitimate, which should be consistent with the customs authorities' findings. The technical member dismissed this argument, stating that income-tax assessments do not determine the legality of goods under the Customs Act.

Mode of Transportation of Gold Biscuits:
The appellants argued that carrying gold in shoes is a trade practice for safety. The judicial member accepted this explanation, citing examples of similar practices. The technical member found this claim implausible and indicative of clandestine activities, noting that substantial quantities of gold were not concealed in shoes.

Separate Judgments by Judicial and Technical Members:
- Judicial Member (M.V. Ravindran): Allowed the appeals, set aside the confiscation and penalties, and found that the appellants discharged their burden of proof.
- Technical Member (M. Veeraiyan): Upheld the confiscation and penalties, reduced the penalties for Shri Vijay D. Patel and Shri Shailesh R. Patel, and found that the appellants did not discharge their burden of proof.

Majority Decision:
The Vice-President (S.S. Kang) agreed with the judicial member, leading to a majority decision to allow the appeals, set aside the confiscation and penalties, and grant consequential relief if any.