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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 ..... stoms Department. Harbouring the view that the seized gold was illegally smuggled into India, show cause notice was issued for confiscation proceedings. The explanation, which says that the gold bar was purchased from one S.Balamurgan of M/s Palanimurgan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of penalty as ordered above, no further interference is made with the impugned order. Appeal is partly allowed on above terms." 5. The appellant contending that, the gold bar was not seized within the customs zone. There is no iota of evidence to suggest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the seized gold bar and that which had been imported by MMTC and allegedly sold to M/s. Surana Corporation and later to Palanimurugan Jewellery, Karur, could be a ground for invocation of Section 123 of Customs Act, 1962 and whether the Tribunal erred 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscrepancies in the marking found on the seized gold viz-a-viz markings on the gold bars imported by M/s MMTC from whom M/s Surana Corporation claims to have purchased and sold to Balamurugan is a clear proof of smuggling. The false explanation strengthen 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 opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese documents correlate the gold bar with marking of Commerz Bank seized from Rajan with the invoices and bill of entry packing list furnished by M/s Surana Corporation. Hence, it is apparent that when the statute under Section 123 cost burden the possessor 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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