2001 (5) TMI 473 - AT - Customs

Summary

Issues Involved:
- Whether gold biscuits bearing foreign mark seized from Abdul Rahim are liable to confiscation
- Whether penalty is imposable on the Appellant

Analysis:
Issue 1: Confiscation of Gold Biscuits
The Appellant, represented by Shri J.S. Agrawal, argued that he lawfully purchased 11 gold biscuits from M/s. Sanghvi Enterprises, Mumbai, and sent them with Abdul Rahim for sale in Shillong. However, the Department's case relied on Abdul Rahim's statement, corroborated by Sanjay Goyal, indicating the gold was smuggled. The Appellant's contentions regarding the bills from Sanghvi Enterprises and lack of proper enquiry were dismissed. The Tribunal found Abdul Rahim's initial statement, made in the presence of witnesses, credible, especially since there was no complaint of coercion. The Tribunal cited precedents where delayed retractions were not accepted, emphasizing the burden of proof under Section 123 of the Customs Act. The Tribunal concluded that the gold was not lawfully purchased, upholding the confiscation.

Issue 2: Imposition of Penalty
The Commissioner of Customs had confiscated the gold and imposed penalties on the Appellant, Abdul Rahim, and Sanjay Goel. The Appellant's counsel argued that Section 123 of the Customs Act was not invoked in the show cause notice, shifting the burden of proof to the Department, which they failed to discharge. However, the Department contended that Abdul Rahim's belated retraction and Sanjay Goyal's confirmation of the initial statement supported their case. The Tribunal found the Department's case based on credible statements, rejecting the Appellant's arguments. The Tribunal emphasized the admissibility of statements recorded under Section 108 of the Customs Act and upheld the penalties imposed, citing the Appellant's failure to prove the gold was not smuggled.

In conclusion, the Tribunal dismissed the appeal, ruling in favor of confiscation of the gold biscuits and upholding the penalties imposed on the parties involved based on the credible statements and burden of proof under the Customs Act.