2013 (4) TMI 7 - AT - Customs

Smuggling goods Demand of duty u/s 28 and penalty u/s 117 of the Customs Act. - Appellant is a goldsmith and in his custody gold and silver ornaments are found he could not produce any documents showing the licit possession and ownership of the goods - Appellant makes the following submissions that Gold is not notified under Section 123 and the said provisions would not apply. It is evident that the goods were seized by the Police under the presumption that they were stolen property and the goods were not seized by the Customs from the appellant. Therefore, the burden to prove the gold in question is not smuggled is not required to be discharged by the appellant and it is for the department to establish that the goods are smuggled and this onus has not been discharged by the department. Mere foreign marking on the gold does not by itself establish the smuggled nature of the goods. It can at best establish the foreign origin of the goods. Merely because the appellant could not produce the documents to establish the licit nature of the goods is not sufficient to establish the smuggled nature of the goods. Held that - The argument provided by the appellant is wrong for the reason that subsequent to sub-section (2) of Section 123 clearly provides that the section applies to gold and the manufacturer thereof. Customs authorities did not seize the goods from the appellants; therefore, the provisions of Section 123 which casts the onus on the appellants to prove that the goods are not smuggled is not applicable, inasmuch as no seizure has been made from the appellant by the Customs. Therefore, the burden and onus of proof to establish the fact that the goods are smuggled lies on the Revenue and not on the appellants. In respect of these gold articles, there is no evidence whatsoever in record to show that they are of foreign origin. Tribunal do not find any infringement of the provisions of Customs Act so as to attract confiscation under Section 111(e) and (i) of the said Act and accordingly, and set aside the same. The next issue for consideration is whether the appellants are liable to pay Customs duty demanded under Section 28 of the Customs Act. Invoking the provisions of Section 28 applies to imported goods. Smuggled goods are not imported goods as held by the Hon ble Apex Court in the case of Commissioner of Customs v. Ambalal & Co. 2010 (12) TMI 16 - Supreme court of India . Therefore, the provisions of Section 28 are not attracted in the case of smuggled goods. Thus, the determination of duty and the demand of duty in the instant case is not in accordance with law and, therefore, the same has to be set aside.

Issues Involved:
1. Applicability of Section 123 of the Customs Act, 1962 to gold.
2. Onus of proof regarding the smuggled nature of the goods.
3. Validity of the seizure of goods by the Police and subsequent handling by Customs.
4. Evidence supporting the licit possession of the gold.
5. Confiscation under Sections 111(e) and 111(i) of the Customs Act.
6. Demand of Customs duty under Section 28 of the Customs Act.
7. Validity of penalties imposed on the appellant.

Detailed Analysis:

1. Applicability of Section 123 of the Customs Act, 1962 to gold:
The appellant argued that gold is not included under Section 123 of the Customs Act. However, it was clarified that sub-section (2) of Section 123 explicitly includes gold and its manufacturers. Therefore, the argument that Section 123 does not apply to gold is incorrect.

2. Onus of proof regarding the smuggled nature of the goods:
The appellant contended that since the goods were seized by the Police and not by the Customs directly, the burden of proving that the gold is smuggled lies with the Revenue. Citing the Supreme Court's decision in Gian Chand & Others v. State of Punjab, it was held that when goods are seized by the Police and handed over to Customs, the onus does not shift to the appellant. Therefore, the burden to prove that the goods are smuggled remains with the Revenue.

3. Validity of the seizure of goods by the Police and subsequent handling by Customs:
The goods were initially seized by the Police and later handed over to Customs. The Tribunal observed that the seizure by the Police does not equate to a seizure by Customs under Section 123. Therefore, the Customs authorities did not seize the goods directly from the appellant, and the onus of proof remains with the Revenue.

4. Evidence supporting the licit possession of the gold:
The appellant produced letters from various traders in Narayanpet to establish the licit possession of the gold. The Tribunal noted that the appellant consistently maintained that the gold was procured from these traders. The statements of some traders also corroborated the appellant's claim. The Customs authorities failed to effectively rebut this evidence. Therefore, the Tribunal held that the appellant had provided sufficient evidence to establish the licit possession of the gold.

5. Confiscation under Sections 111(e) and 111(i) of the Customs Act:
The Tribunal found that the provisions of Sections 111(e) and 111(i) apply to goods concealed in conveyances coming from outside India. In this case, the vehicle was plying within India, and the gold was placed in a standard compartment of the vehicle. There was no special effort made to conceal the gold, and the compartment was a standard feature of the Maruti WagonR. Therefore, the Tribunal held that the provisions of Sections 111(e) and 111(i) were not applicable, and the confiscation under these sections was set aside.

6. Demand of Customs duty under Section 28 of the Customs Act:
The Tribunal observed that Section 28 applies to imported goods on which duty has been levied or paid. "Smuggled goods" are not considered "imported goods" under this section. Duty on smuggled goods can only be demanded when they are confiscated and released on payment of a redemption fine under Section 125. The demand of duty in this case was based on the value and rate of duty on the date of seizure, which was incorrect. Therefore, the demand of duty under Section 28 was set aside.

7. Validity of penalties imposed on the appellant:
The Tribunal noted that penalties were proposed on the appellant and other traders, but the adjudicating authority dropped the proceedings against the traders without citing reasons. The only evidence against the appellant was his initial statement, which he later rebutted with documentary evidence. The Tribunal held that the appellant should be given the benefit of doubt, and the penalties imposed on him were not justified.

Conclusion:
The appeal filed by the appellant was allowed with consequential relief. The confiscation of gold and the demand for customs duty were set aside. The penalties imposed on the appellant were also annulled. The Tribunal emphasized the need for corroborative evidence to support the allegations of smuggling and the importance of adhering to legal provisions in the seizure and confiscation process.

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