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TMI Blog2025 (3) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 111 and penalty can be imposed under Section 112 of the Customs Act. Gold with foreign marking is a dutiable goods which requires valid import document under law. The statement of M/s Surana Corporation Limited and their purchase documents reveals that M/s Surana Corporation importing gold from (1)NATAXIZ (2) Bank of Novascotia (3) Standard Bank through M/s.MMTC Ltd., whereas gold bar seized have the marking of Commerz Bank, Switzerland. Further enquiry with M/s Surana Corporation in respect of the said discrepancies, certain documents were produced by M/s Surana Corporation. None of these documents correlate the gold bar with marking of Commerz Bank seized from Rajan with the invoices and bill of entry packing list furnished by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jewellery, Karur on credit basis and the said Balamurgan purchased the gold bar from M/s Surana Corportion of Chennai under proper documentation and payment was made through Banking channel was cross verified and found that the description found on the gold bar seized from Rajan does not tally with the description or origin of the gold bars supplied to M/s Surana Corporation by the importer M/s MMTC. Hence, the Additional Commissioner of Customs concluded that the gold bar seized were to be confiscated with penalty of Rs 1.50 lakhs. The statutory Appeal under Section 128 of the Customs Act before the Commissioner of Customs (Appeal) came to be disposed on 23.08.2012 confirming the order of confiscation and the imposition of penalty. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggest or hold that there had been an activity of actual smuggling of the gold bar to invoke Section 123 of the Customs Act. The appellant by statements and documents established was able to show by preponderance of probability that the gold bar seized was acquired legally in the normal course of trade. Having discharged the burden, Section 123 of the Customs Act ought not to have been invoked. 6. The following question of law raised by the appellant in support of his grounds of appeal: "1. Is the Tribunal correct in confirming the order of hte authorities below holding that the appellant had not discharged the burden cast on him in terms of Section 123 of the Customs Act, in relation to the gold bar under seizure? 2. Has the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in taking that into account for rendering its findings in the impugned order?" 7. The learned counsel for the appellant submitted that the order of confiscation suffer fundamental illegality and the order of the CESTAT in spite of clear explanation about the source of the seized gold bar holding that the appellant failed to discharge the burden in terms of Section 123 of the Customs Act is perverse. He reiterated that, the appellant had purchased the gold bar in question in the normal course of business under proper bill and absolutely no material to show that the gold bar in question was smuggled at a point anterior to its purchase. He also relied upon the following judgements in support of his argument:- 1) Union of India -vs- Imti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the case of the department further and it cannot be a probable explanation to reverse the burden of presumption. 9. Chapter 14 of the Customs Act deals with confiscation of goods and conveyance and imposition of penalties. Before proceeding with confiscation of goods, the Officer of Customs not below the rank of an Assistant Commissioner of Customs shall cause notice informing the grounds on which he proposed to confiscate the goods or to impose penalty after affording reasonable opportunity, goods improperly imported can be confiscated under Section 111 and penalty can be imposed under Section 112 of the Customs Act. Gold with foreign marking is a dutiable goods which requires valid import document under law. After seizure of one kilo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssor of the goods reasonably believed to be a smuggled goods to distract the burden. In this case, the appellant had miserably failed to distract the said burden. The order in original as well as the order in appeal had disclosed this fact in detail. It has been concluded that the gold bar seized does not supported by valid import documents either at the time of seizure or later. 10. The CESTAT which is the final fact finding authority has confirmed the order in appeal with modification of penalty assigning reason. This Court finds no perversity or error of application of mind or appreciation of material facts by CESTAT. 11. In fine, this Civil Miscellaneous Appeal stands dismissed confirming the order of the CESTAT passed in Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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