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TMI Blog2011 (4) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 25-4-2011 - Mr. Justice Bhaskar Bhattacharya, Mr. Justice Sambuddha Chakrabarti, JJ. For the Appellant: Mr. Amalesh Roy. For the Respondent: Mr. R. Bharadwaj, Mr. Subir Kumar Saha. Bhaskar Bhattacharya, J.: This appeal is at the instance of an appellant before the Customs, Excise Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, and is directed against an order dated 16th September, 2004 passed by such Tribunal dismissing the appeal preferred by the appellant and upholding the order of confiscation under Sections 111(b) and 111(d) of the Customs Act, 1962 read with Section 121 of the said Act and imposition of penalty under Section 112 of the said Act. Being dissatisfied, the appellant has come up with the present appeal. The facts giving rise to filing of this appeal may be summed up thus: a) The Officers of the Directorate of Revenue Intelligence, Siliguri Regional Unit, along with the Officers of Coochbehar Central Excise Division, apprehended one Md. Sahanat Ali while he got off from a bus arriving from Dinhata. On being asked, he submitted that he was carrying seven pieces of gold biscuits of foreign origin concealed inside hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Currencies under Sections 111(b) and 111(d) and 121 of the Customs Act and penal action under Sections 112 and 117 of the said Act. e) The adjudicating authority confiscated the gold biscuits under Sections 111(b) and 111(d) of the Customs Act. The Bhutanese Currency was confiscated under Section 121 of the said Act and the anklets used for concealing the gold biscuits were also confiscated under Section 119. Personal penalties were imposed at different rates considering the gravity of offences on those appellants. f) Being dissatisfied with the order of the adjudicating authority, all the appellants filed individual appeals to the Commissioner (Appeals) who vide his order rejected the three appeals and confirmed the order of the lower authority. g) Being dissatisfied, the appellants preferred three appeals before the Tribunal below and by the order impugned in this appeal, the Tribunal has dismissed the appeals brought by the three appellants. h) Being dissatisfied, Nand Kishore Somani alone has preferred the present appeal under Section 130 of the Customs Act. Mr. Roy, the learned Advocate appearing on behalf of the appellant, strenuously contended before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal below rightly disbelieved the version of the appellant and in the case before us, the receipt produced by the appellant did not reflect the fact that those biscuits mentioned therein were really related to the seven biscuits confiscated by the customs authority. Mr. Bharadwaj further submits that there was no proper explanation of even the one of eight gold biscuits which the appellant claimed to have already transformed into ornament and in the absence of such explanation, the Tribunal below rightly disbelieved the case of the appellant. Mr. Bharadwaj further submitted that even in the receipts produced by the appellant, there was no description of the gold biscuits whereas in the seized one it is specifically mentioned that those are of PAPUA NEW GUINEA origin. Mr. Bharadwaj further submits that Narendra Sharma, the alleged purchaser from M/s. Rara Brothers Pvt. Ltd. also was not produced before the Customs authorities and the notice issued to his address came back with the endorsement not found . According to Mr. Bharadwaj, on consideration of all the aforesaid factors, the Tribunal below rightly held that the appellant could not explain lawful acquisition of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s without anything more when the appellant himself did not purchase, the initial burden of proving the defence has not been discharged. The Tribunal below, in such circumstances, did not commit any illegality in disbelieving the version of the appellant regarding lawful entry of the biscuits in India and thus, no question of law is involved in this appeal. We now propose to deal with the decision cited by Mr. Roy. In the case of S. K. Chains (Supra), the Tribunal at Mumbai was dealing with a case where gold was recovered from the appellant who took the defence of purchase from a gold dealer firm by account payee cheques. In such a case, it was held that the purchase from gold dealer not having been disputed, it should be presumed that the appellant had discharged his burden that it was not improperly imported. In the case before us, the appellant himself did not purchase but sent another person to purchase by cash but such person was not produced to prove the defence. Thus, the main defence that it was purchased by Narendra Sharma on behalf of the appellant was not proved. Mere production of receipt allegedly given by Narendra Sharma which neither mentioned the name of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, two other invoices were issued to some others on December 26, 2007 whereas the respondent was arrested on December 25, 2007 and was in custody till December 26, 2007 and thus, the invoice dated December 24, 2007 could not be held to after-thought as alleged by the Customs. We fail to appreciate how the said decision can be of any help to Mr. Roy s client when he could not even prove purchase from authorised shop by production of Narendra Sharma who allegedly purchased the same. In the case of Commissioner of Customs vs. Golak Chandra Kamilla (Supra), the Tribunal at Kolkata was dealing with a case where the respondent took the defence that he purchased the gold from M/s. Guinea Palace, Midnapur. Subsequently, the Department made an investigation and took the statement of the shop owner who used to purchase gold from M/s. Jalan Co. But the Department failed to verify from M/s. Jalan Co. as regards the seized articles. In such a case, it was held that the burden of proving lawful possession was discharged. In the case before us, the initial defence that the seized gold was purchased through Narendra Sharma by cash has not been established by mere production of a receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable. In the case of Commissioner of Customs, Jaipur (Supra), the Tribunal at Delhi was considering a case where a confessional statement under Section 108 of the Act was retracted on the very next day and the burden of proof was discharged by the respondent by establishing unbroken sequence of lawful transaction leading to his lawful possession. In such a case, it was held that the order of confiscation could not be sustained. In the case before us, the appellant even could not produce evidence of utilization of the eighth gold biscuit by conversion to ornament by production of any evidence not to speak of actual payment by appellant to Narendra Sharma and the tender of such money to M/s. Rara. Thus, the said decision has no application to the facts of the present case. The case of Mohini Bhatia (Supra), is one of the Tribunal at Mumbai dealing with a case where gold bar weighing 650 tolas were brought in India by mother and the daughter duo and were not declared at the airport Customs on arrival from Singapur. An order of confiscation was passed. On appeal, the Tribunal converted such order to redemption fine of total Rs.8.50 lakh. Prayer for re-export was, however, refused. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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