JUDGMENT
Archana Wadhwa
1. Briefly stated the facts of the case are as under :-
1.1 The appellant, Shri Dattaji Deokar, is a proprietor of M/s Sidhnath Silver Refinery situated at Cuttak. On 9.9.98, the business premises of the said firm as also residential premises of the appellant situated in the same building were put to search by the Customs Officers. As a result of search, three gold biscuits and one cut biscuits of gold of foreign origin along with Indian currency of Rs.3,00,000/- were recovered from the shop premises. The search of the Residential premises resulted in the recovery of 7 pcs. of gold biscuits of foreign origin. The appellant in his spot statement admitted that he was not having any legal documents for the possession of the said gold biscuits of foreign origin. As regards the Indian currency, he deposed that the same was sale proceeds of gold and silver ornaments.
1.2 At the time of search of the shop premises two other persons named, Shri Samir Jain and Shri Sambhu Singh Rajawat were also present. Personal search of the said two persons resulted in recovery of Indian currency of Rs.4,00,000/- from Shri Samir Jain and of Rs.1,00,000/- from Shri Rajawat. The statement of Shri Samir Jain was also recorded wherein he admitted having sold five gold biscuits of foreign origin to the appellant on 8.9.98. He also stated that the cash recovered from him was the sale proceeds of gold biscuits and ornaments sold at Puri. Shri Rajawat in his statement dated 9.9.98 contended that on previous occasion, he dealt with gold biscuits of foreign origin and he had sold two gold biscuits of foreign origin to the appellant on 8.9.98. He also gave the details of Rs.1,00,000/- recovered form his person.
1.3 On a reasonable belief that the gold biscuits of foreign origin were smuggled and the Indian currency recovered from the appellant as also two other persons was the sale proceeds of the smuggled gold, the Customs Officers seized the same.
1.4 During post seizure investigation, the appellant disclosed that 6 pcs. of gold biscuits were bought by him from M/s Visakha Bullion Corporation on 7.9.98 and the consideration for the same was paid in the shape of demand draft. The balance 5 pcs. of foreign origin gold belonged to Shri Samir Jain, who had given the same to the appellant.
1.5 On the above basis, all the persons were issued show-cause notices proposing confiscation of the gold biscuits as also imposition of personal penalty on them. The said show-cause notice resulted in passing of the impugned order by the Commissioner of Customs, BBSR vide which he ordered for confiscation of 10/1/2 pcs. of the seized gold totally valued at Rs.5,11,700/-. He also confiscated the Indian currency of Rs.3,00,000/- seized from the appellant and of Rs.4,00,000/- seized from Shri Samir Jain. The personal penalty of Rs.50,000/- has been imposed on the appellant along with imposition of personal penalty of Rs.1,00,000/- on Shri Samir Jain. The Indian currency of Rs.1,00,000/- seized from Shri Sambhu Singh Rajawat was released. It may be clarified here that Shri Jain has not filed any appeal against the abvoe order. As such, the appeal of Shri Dattaji Deokar is being disposed of by this order.
2. I have heard Shri P.R.Biswas, ld.Consultant appearing for the appellant and Shri V.K.Cahturvedi, ld.SDR for the Revenue.
3. As regards the 6 pcs. of gold biscuits, the appellant’s contention is that the same were purchased by him from M/s Visakha Bullion Corporation. In support of the above statement, they had produced “Sale Register – Gold” No.11 dated 7.9.98 maintained by M/s Visakha Bullion Corporation. Demand draft issued by the State Bank of India, Cuttack in favour of M/s Visakha Bullion Corpn. were also produced before the adjudicating authority. The said stand of the appellant has not been accepted by the Commissioner on the ground that in his initial voluntary statement given on 9.9.98 and 10.9.98, the appellant had deposed to the fact that the gold biscuits in question were smuggled and he was not having any document to establish the legal possession of the same. However, it is seen that at the time of moving his bail application, the appellant had taken a stand that the document showing the legal acquisition of the gold biscuits was in his possession and would be produced before the Customs Officers. Even in his subsequent statement recorded on 9.10.98, he had disclosed that the 6 pcs. of gold biscuits were taken on credit from M/s Visakha Bullion Corpn. on 7.9.98. As such, the reliance by the adjudicating authority on the first statement as against the documentary evidence produced by the appellant will not tilt the weight of the evidence in favour of the Revenue.
4. He his further rejected the evidence produced by the appellant in the shape of sale register of M/s Visakha Bullion Corpn. on the ground that there is no invoice or receipt of the said biscuits. As such, in the absence of the same, sale register cannot be given any credence. He has further observed that whereas the god biscuits recovered from the appellant’s shop were of specific brand ‘swisse’, the same was not marked in the sale register, which only specified the god as T.T.bar gold.
5. I find that no enquiries have been conducted by the Revenue from M/s Visakha Bullion Coprn. Further, the adjudicating authority has not denied the payment for consideration of Rs.2,94,000/-by the appellant in the shape of demand draft but has recorded that the payment made by this demand draft though might represent the value of 6 ten tola bars but it does not establish that this payment was made agaisnt of the gold biscuits involved under seizure. I find that the Tribunal in the case of S.K.Chains v. Commissioner of Customs (Prev.), Mumbai reported in 2001 (127) ELT 415 (Tri.-Mum.) has held that where the appellants claimed to have acquired the god from the god dealer firm, which is not made notice to the show-cause notices, it has to be held that the appellant had discharged the burden of proof placed upon him. It has also been observed in the said decision that purchase of foreign marked gold biscuits from open market without receipt will not indicate that the gold under seizure is illegally imported inasmuch as there is no requirement for maintenance of any documents and records indicating such receipt. As such, I am of the view that inasmuch as the said quantity of six gold biscuits is concerned, the appellants have been able to substantiate their defence of purchase of the same from M/s Visakha Bullion Corporation. Accordingly, I order for release of the said six gold biscuits to the appellant. As regards the balance 4 1/2 pcs. of gold biscuits, the appellants have submitted that the same were given to him by Shri Samir Jain.
In his initial statement, Shri Samir Jain has admitted having handed over such biscuits to the appellant, but in his subsequent statement and in his reply to the show-cause notice, he has denied the same. However, whatsoever may be the position, the fact remains that the appellants have not placed on record any papers showing illegal importation of the gold biscuits in question. It is not the appellant’s case that the gold biscuit handed over to him by Shri Samir Jain were acquired by him legally or the same were imported into the country, either by Shri Samir Jain himself or by any other person. Gold is still a notified items under Section 123 of the Customs Act and the burden of proving the legal acquisition is upon the person from whose possession the gold has been recovered. The appellants have not placed any evidence on record except to show that the biscuits have been handed over to him by Shri Samir Jain. As such, I hold that there being no evidence to show legal importation of 4 1/2 gold biscuits of foreign origin into the country, the same have been rightly confiscated by the adjudicating authority. I confirm the order of confiscation of the same.
6. As regards the confiscation of the Indian currency of Rs.3,00,000/- recovered from the appellant’s possession, the appellant in his initial statement had deposed that the same was sale proceeds of gold and silver jewellery. It is well settled that the Revenue is required to prove beyond doubt that the Indian currency is sale proceeds of smuggled gold. There is nothing on record to establish the same. As such, I set aside the confiscation of Indian currency of Rs.3,00,000/- and order the release of the same.
7. In view of the partial allowing of the appeal, the personal penalty of Rs.50,000/- is reduced to Rs.25,000/-. Appeal is disposed of in the above terms.
(Pronounced in the Court)