2015 (12) TMI 588 - AT - Customs

Seizure of gold biscuits - onus to prove - Smuggling of gold biscuits - Held that - Appellant has discharged the onus of licit acquisition of foreign marked gold biscuits by producing a bill.It is also observed from the first statement dated 5/9/2000 of Smt. Chhabi Biswas and Shri Joy Gopal Biswas that it was only their belief that said gold biscuits were from Bangladesh. It is also not coming out of the investigation as to how both of them believed that gold in their possession was of Bangladesh origin. As already observed trace leading to Joynal, mentioned by Shri Joy Gopal Biswas in his very first statement dated 5/9/2000, was not followed by investigation to establish that seized foreign marked gold biscuits were in fact smuggled into India. Reasonable doubt of smuggled nature of foreign marked gold may be sufficient for the purpose of seizure of gold, by virtue of Section 123 of the Customs Act, 1962, but the same is not sufficient for confiscation under Section 125 of the Customs Act, 1962 when appellant has produced legal document of their licit acquisition. Accordingly, it is held that department is not able to establish the smuggled nature of seized foreign marked gold whereas claimant appellant has been able to discharge his burden by providing licit document of the purchase of 60 foreign marked gold biscuits. In the light of liberalized policy of the Central Government it cannot be held that all the foreign marked gold being bought and sold in India is of smuggled nature. Statements of both Smt. Chhabi Biswas and Shri Joy Gopal Biswas were written by one of the panch witnesses Shri Chandan Dey. Even their first statements dated 5/9/2000 only convey that they believed that foreign marked gold came from Bangladesh. The trail of Joynal was not pursued by investigation. It was not existing in the statements of Smt. Chhabi Biswas & Shri Joy Gopal Biswas as to how the seized gold was brought into India and by whom. In the above factual matrix, subsequent statement of Shri Joy Gopal Biswas dt. 22/9/2000 recorded in Judicial Custody was more detailed, authentic and the trail given by Shri Joy Gopal Biswas and Shri Nitya Gopal Biswas was followed by investigation. Shri Laljibhai K. Soni confirmed to have sold the said 60 gold biscuits to the claimant appellant. In view of the above observations made, the findings arrived at by the Adjudicating authority, can only raise strong suspicion about the smuggled nature of seized gold but suspicion howsoever grave cannot take the place of evidence when appellant has discharged his onus. It is accordingly held that statements recorded on 5/9/2000 were not reflecting the correct facts of the case. - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether appellant Shri Nitya Gopal Biswas managed Bill No. 422 dated 29/8/2000 to cover up 60 foreign marked gold biscuits seized on 5.9.2000.
2. Whether penalties are attracted against the appellants under Section 112 of the Customs Act, 1962.

Issue-wise Detailed Analysis:

Issue 1: Whether appellant Shri Nitya Gopal Biswas managed Bill No. 422 dated 29/8/2000 to cover up 60 foreign marked gold biscuits seized on 5.9.2000.

The case revolves around the interception of a Tata Sumo vehicle on 5.9.2000, which led to the seizure of 60 foreign marked gold biscuits from Smt. Chhabi Biswas and Shri Joy Gopal Biswas. They could not furnish any document for the licit possession of the gold, leading to its seizure under Section 123 of the Customs Act, 1962. Both initially stated that the gold was believed to have come from Bangladesh. However, Shri Nitya Gopal Biswas later claimed the gold, presenting a purchase bill No. 422 dated 29/8/2000 from Shri Laljibhai K. Soni of Ahmedabad.

The adjudicating authority doubted the authenticity of the bill, citing discrepancies in weight, the absence of the buyer's signature, and the non-mention of sales tax details. However, the Tribunal found that the slight variation in weight could be due to weighing errors, as supported by the case of Kapil Deo Prasad Vs. C.C. (P), Patna. Furthermore, the Tribunal noted that there was no legal requirement for the buyer's signature on the bill or for the seller to detail sales tax if the final price included it. The Tribunal also observed that the records maintained by Shri Laljibhai K. Soni showed substantial transactions in gold, supporting the authenticity of the bill.

The Tribunal criticized the department for not investigating the trail leading to Joynal, mentioned by Shri Joy Gopal Biswas, to establish the smuggled nature of the gold. The Tribunal concluded that the department's focus on discrediting the bill was insufficient to prove the gold's smuggled nature, especially when the claimant provided a legal document for its acquisition. The Tribunal held that the initial statements were not conclusive and that the subsequent statement of Shri Joy Gopal Biswas in judicial custody was more detailed and credible.

Issue 2: Whether penalties are attracted against the appellants under Section 112 of the Customs Act, 1962.

Given the Tribunal's decision on the first issue, it found that the penalties imposed under Section 112 of the Customs Act, 1962, were not justified. The Tribunal emphasized that suspicion, however strong, cannot replace evidence, and since the appellant had discharged his burden of proving the licit acquisition of the gold, the penalties were unwarranted.

Conclusion:

The appeals were allowed, and the confiscation of the gold and imposition of penalties were set aside. The Tribunal underscored the importance of concrete evidence over suspicion and highlighted procedural lapses in the investigation, particularly the failure to trace the origin of the gold through Joynal. The Tribunal's decision was pronounced on 4/12/2015.