2025 (5) TMI 1035 - AT - Customs

Confiscation of gold biscuits gold jewellery and Indian Currency - Smuggling - seeking to release the seized Indian currency - imposition of penalties - no documents in support of possession of gold ornaments and foreign origin gold biscuits - term reasonable belief - difference in cash in hand at head office and cash in hand as per books of account - applicability of Section 123 of Customs Act 1962 - HELD THAT - From perusal of the record we pass the following order - (i) We hold that the officers of DRI had reason to believe that the gold biscuits/bars were smuggled in nature and the gold ornaments were made from smuggled gold. However the appellants have discharged their liability cast under Section 123 of the Act in respect of the gold ornaments. Accordingly we hold that the gold ornaments seized are not liable for confiscation. (ii) The appellants have discharged their burden of proof cast upon them regarding licit purchase of the gold as required under Section 123 of the Customs Act in respect of the 1 kg. gold bar and hence we hold that the same is not liable for confiscation. (iii) We hold that the 26 pieces of gold have been rightly confiscated by the ld. adjudicating authority in the impugned order as no documents were produced for its licit purchase. Accordingly confiscation of the 26 pieces of gold biscuits is upheld. (iv) The Indian Currency of Rs.1, 88, 00, 800/- seized in this case are not liable for confiscation. Accordingly we order for the release of the same. (v) The penalties imposed on Shri Naresh Kumar Agarwalla and Shri Atu Dutta under Section 112 of the Customs Act 1962 stand reduced to Rs.5, 00, 000/- and Rs.2, 00, 000/- respectively. The penalty imposed on Shri Pran Gopal Saha under Section 112 of the Act is set aside. In these terms the appeals are disposed of.

Summary

The core legal questions considered by the Tribunal in this matter are as follows:

(1) Whether the officers of Directorate of Revenue Intelligence (DRI) had 'reason to believe' that the gold biscuits/bars were smuggled in nature and that the gold ornaments were made from smuggled gold;

(2) Whether the burden of proving that the gold in question are not smuggled in nature lies on the appellants under Section 123 of the Customs Act, 1962;

(3) Whether the evidences submitted by the appellants establish that the 26 pieces of gold biscuits, 1 kg gold bar, and the gold ornaments were purchased from domestic sources and hence not liable for confiscation;

(4) Whether the Indian Currency seized in the case is liable for confiscation;

(5) Whether the penalties imposed on the appellants under Section 112 and Section 135 of the Customs Act, 1962 are sustainable.

Issue-wise Detailed Analysis:

Issue (1): Reason to Believe by Officers of DRI Regarding Smuggling

The legal framework governing seizure is Section 110 of the Customs Act, 1962, which mandates that a proper officer must have a 'reasonable belief' that goods are liable for confiscation before seizure. The appellants contended that no such reasonable belief was formed, citing the absence of specific reasons in the Seizure Memo and reliance on Board Circular No. 01/2007 dated 08.02.2007, which requires an order specifying reasons for belief.

Upon examination, the Tribunal found that the Panchnama recorded at the time of seizure clearly indicated that the officers acted on specific intelligence that the gold was smuggled into India through unauthorized routes. This intelligence, coupled with the interception of the appellant carrying gold without valid documents, sufficed to constitute reasonable belief under Section 110. The Tribunal relied on a recent High Court decision which clarified that reasonable belief is to be judged from the customs officers' experience and that the existence of prior information is a significant factor. The Court also noted that the absence of explicit reasons in the seizure memo does not vitiate the seizure if reasonable belief existed.

Therefore, the Tribunal held that the officers had a reasonable belief that the gold biscuits/bars were smuggled and the gold ornaments were made from smuggled gold, validating the seizure.

Issues (2) and (3): Burden of Proof under Section 123 and Evidence of Licit Purchase

Section 123 of the Customs Act shifts the burden of proof to the person from whose possession the goods were seized or to any person claiming ownership, to prove that the goods are not smuggled. The appellants submitted documents and invoices claiming licit purchase of the gold ornaments and the 1 kg gold bar. They also produced hallmarking certificates confirming purity and demonstrated payment through banking channels.

Regarding the gold ornaments (total weight 3072 grams), the appellant Atu Dutta stated that these were received from four different persons in Kolkata. The owner of the firm, Shri Naresh Agarwala, produced invoices, delivery receipts, and affidavits asserting lawful acquisition. The Tribunal noted the absence of any evidence from the Department to contradict these claims and held that the appellants discharged their burden under Section 123 for the gold ornaments. Consequently, the gold ornaments were held not liable for confiscation.

Regarding the 1 kg gold bar bearing the foreign marking "Valcambi Suisse," the appellants produced a tax invoice from a recognized jeweller and asserted lawful purchase. The Tribunal found no evidence from the Department to the contrary and held that the burden of proof was discharged, exempting the gold bar from confiscation.

Conversely, for the 26 pieces of gold biscuits bearing foreign markings, the appellant from whose possession the gold was seized (Atu Dutta) did not have any documents, and the person claiming ownership (Naresh Agarwala) failed to produce valid documents despite multiple summons. The Tribunal emphasized that as gold is a notified item under Section 123, the onus to prove licit acquisition rests on the claimant. Due to failure to produce such evidence, the Tribunal upheld confiscation of the 26 gold biscuits.

Issue (4): Confiscation of Indian Currency

Indian currency amounting to Rs. 1,88,00,800/- was seized from the office premises of Shri Pran Gopal Saha, alleged to be sale proceeds of smuggled gold. The appellant claimed ownership of the currency, stating it was given to him by Shri Naresh Agarwala for safekeeping. Documentary evidence was produced to establish this fact.

The Tribunal found no evidence on record to substantiate the claim that the currency was proceeds of smuggled gold. Accordingly, the confiscation of the currency was held unsustainable, and the amount was ordered to be released.

Issue (5): Sustainability of Penalties under Section 112 and Section 135

Section 112 penalizes persons who knowingly or having reason to believe, deal with goods liable for confiscation. The Tribunal analyzed the penalties imposed on the appellants in light of the findings on confiscation.

Since the gold ornaments and the 1 kg gold bar were held not liable for confiscation, penalties related to these were set aside. Similarly, the penalty imposed on Shri Pran Gopal Saha for the seized currency was quashed due to lack of evidence of illegality.

For the 26 pieces of gold biscuits, the Tribunal found that Atu Dutta was merely a carrier and not the ultimate beneficiary. Hence, while penalty was justified, it was reduced from Rs. 50,00,000/- to Rs. 2,00,000/-. For Naresh Agarwala, the penalty was reduced from Rs. 1,00,00,000/- to Rs. 5,00,000/- due to the absence of conclusive evidence of prior offenses or higher culpability.

The Tribunal also noted that no evidence was brought to show past offenses by the appellants, negating any penalty on that basis.

Significant Holdings:

"The Panchnama drawn by the Officers on 27.12.2013 clearly establishes that there was a reasonable belief formed that the goods were liable for confiscation and accordingly, the same have been seized in terms of Section 110 of the Customs Act, 1962."

"Specific information about the smuggled gold is sufficient enough to form the reasonable belief that the goods in question are smuggled in nature and liable for confiscation."

"The appellants have discharged their liability cast under Section 123 of the Act in respect of the gold ornaments and the 1 kg gold bar by producing invoices, hallmark certificates, and payment evidence."

"The 26 pieces of gold biscuits bearing foreign markings, without any valid documents evidencing licit purchase, are rightly confiscated."

"The confiscation of Indian Currency of Rs.1,88,00,800/- on the belief that they are sale proceeds of smuggled gold is not sustainable due to lack of corroborative evidence."

"Penalties imposed on the appellants in respect of the gold ornaments, 1 kg gold bar, and Indian currency are set aside; penalties related to the 26 gold biscuits are reduced commensurate with the role of the appellants."

Final Determinations:

(i) The seizure of gold biscuits, bars, and ornaments was based on reasonable belief and is legally valid;

(ii) The burden of proof under Section 123 lies on the persons claiming ownership or possession;

(iii) Gold ornaments and 1 kg gold bar are not liable for confiscation as appellants proved licit acquisition;

(iv) The 26 pieces of gold biscuits are liable for confiscation due to failure to prove licit ownership;

(v) Indian currency seized is not liable for confiscation and must be released;

(vi) Penalties imposed are modified: reduced for Atu Dutta and Naresh Agarwala, and set aside for Pran Gopal Saha.