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TMI Blog2002 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... /- (Rupees fifty thousand) on the first respondent Shri Ashoke Kr. Agarwal and Rs. 5,000/- (Rupees five thousand) on the second appellant Shri Jitendra Kamti. As per the facts on record, customs officers, on 19-8-97 intercepted Shri Jitendra Kamti while he was travelling in a bus from Siliguri to Calcutta. On interrogation the said person accepted having eight pieces of gold biscuits of foreign origin. On search of his person, eight pieces of gold biscuits were found tied to his thigh of right leg and duly wrapped in a black and white adhesive tapes. The said person could not produce any documents for legal acquisition of the gold biscuits in question. Accordingly the officers, on a reasonable belief that the biscuits were smuggled, seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Rs. 4,59,200/- on 30-1-97. In support he produced photocopy of sale bill No. 527, dt. 30-1-97 issued by M/s. Laljibhai Kantibhai Soni of Ahmedabad regarding purchase of gold biscuits in question. 4. Enquiries were conducted by the Revenue from M/s. Laljibhai Kantibhai Soni of Ahmedabad who accepted having sold the gold biscuits in question to the appellants. They further clarified that the said gold biscuits were purchased by them from M/s. Chowksi Arvind Kumar and produced the copies of the bills for the same purpose. On enquiry M/s. Choksi Arvind Kumar admitted having sold the gold to M/s. Laljibhai Kantibhai Soni of Ahmedabad and further deposed that the same was purchased by them from M/s. MMTC. They produced the bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not cover the seized gold biscuits in question. However, by extending the benefit in respect of the three gold biscuits, which had the same markings of 'credit swisse', as were appearing in the gold biscuits imported by M/s. MMTC, he released the said three biscuits. 7. On an appeal against the above order Commissioner (Appeals) set aside the order of the Additional Commissioner and by referring to some earlier decisions of the Tribunal held that the appellant having purchased the gold biscuits from M/s. Laljibhai Kantibhai Soni of Ahmedabad, who have admitted having sold the same to the appellant is sufficient to show the legal acquisition of gold and the onus placed upon the appellant under the provisions of Section 123 is dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as to whether the biscuits recovered from the second respondents' possession and claimed to have been imported by M/s. MMTC are the same and as to whether the respondents have been able to discharge the legal onus placed upon them under the provisions of Section 123. M/s. MMTC has nowhere denied that the gold biscuits imported by them under the relevant bill of entry and sold to M/s. Chowksi Arvind Kumar were with the markings 'credit swisse'. This fact is also evident from the examination report appearing at the back of the bill of entry. It is thus the biscuits carrying markings as 'credit swisse' which were sold to them to M/s. Chowksi Arvind Kumar, which in turn were sold to M/s. Laljibhai Kantibhai Soni of Ahmedabad. who sold the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the respondents were out of the same lot of biscuits imported by M/s. MMTC. As such the burden to prove placed upon the owner of the biscuits under the provisions of Section 123 of the Customs Act, 1962 cannot be said to have been discharged. It is seen that the respondents have already been given the benefit by original adjudicating authority in respect of three gold biscuits bearing the markings 'credit swisse' by observing that the same may be out of the lot of gold biscuits imported by M/s. MMTC. 11. Commissioner (Appeals) has also referred to the earlier order of the CEGAT wherein the Tribunal has observed that the seller "having admitted to have sold gold to the appellant by itself is sufficient to show the legal acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty on Shri Jitendra Kamti is concerned it is seen that he was only acting on behalf of his employer Shri Ashoke Kr. Agarwal. Since Shri Ashoke Kr. Agarwal was having a jewellery shop there can be reasonable belief in mind of the said respondent that the gold biscuits given to him have been procured by Shri Ashoke Kr. Agarwal legally. There is nothing in the statement of Shri Jitendra Kamti that the biscuits given to him can be smuggled or he was aware of the factum of the same being smuggled. As such I find that the imposition of penalty on Shri Jitendra Kamti may not be justified. Inasmuch as the same has been set aside by Commissioner (Appeals) I confirm the order of Commissioner (Appeals) in respect of Shri Jitendra Kamti. 13.&e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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