TMI Blog2019 (1) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... s were seized or the person, if any, who claims to be the owner of the gold - The only fly in the ointment is that there is a definite discrepancy in the markings found on the impugned gold bar vis- -vis markings on the gold bars imported by MMTC Ltd., Chennai. The claim of having acquired and being in possession of legally imported gold bar, will surely crumble - based on the facts on record, the burden of proving that the gold is not smuggled is inter alia on the appellants herein and secondly, such a burden has not been satisfactorily cast off - imposition of penalty under Section 112 of the Customs Act, 1962 on the appellant is very much justified - quantum of penalty reduced from ₹ 1,50,000/- imposed to ₹ 50,000/- - appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the gold bar and imposed penalty of ₹ 1,50,000/-, inter alia on Shri P. Balamurugan (appellant). In appeal, the Commissioner (Appeals) vide impugned order dt. 23.08.2012 inter alia concluded that appellant had not proved beyond doubt that gold bar is a legally imported one and upheld the penalty imposed under Section 112 ibid. Aggrieved, the appellant is before this forum. 2. When the matter came up for hearing on 05.12.2018, on behalf of appellant, Ld. Advocate Shri B. Satish Sundar made oral and written submissions which can be broadly summarized as under : i) From a reading of the sequence of events, it can be seen that acquisition of the gold bar by the appellant was from M/s.Palanimurugan Jewellery of Karur on cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 123 is invocable in such cases and the gold confiscated on the ground that it is not shown that it is not smuggled. ii) The burden under section 123 of the Customs Act, 1962 is rebuttable and the burden so cast is not so heavy as that of the prosecution. If the person charged has a reasonable and plausible explanation, which is capable of being accepted, then the burden would once again shift to the department to show by absolute proof that the gold in question is smuggled. In the present case, the only allegation of the department is that on perusal of the bills of entry submitted by Surana Corporation, the markings which were found on the seized gold bar were not found in the said bills of entry but that does not discount the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession etc. of the gold bar and on account of which imposition of Section 112 of the Customs Act is fully justified. 4. Heard both sides and have gone through the facts of the case. 5.1 Appellant herein has been implicated in arranging to obtain the impugned one Kg. gold bar. The conclusion of the original authority, which has been upheld by the lower appellate authority, is that transaction of valuable gold bar worth ₹ 18 lakhs on credit basis was not acceptable in normal trade; that the purported purchase bill was prepared intentionally only after seizure of the gold bar; that transaction value was not genuine and therefore malafide intention of dealing with smuggled gold is established. We find from the facts on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n markings on the gold bar. However, in paras 53 54 of the order of the original authority, it is indicated that gold bar under seizure had markings COMMERZ BANK 1 KILO GOLD 995.0 AH MELTER ASSAYER Switzerland A 21011 , whereas the gold bars that has been imported by MMTC Ltd., Chennai were of ARGOR brand, issued by M/s. Standard Chartered Bank, London. This discrepancy in markings has not been disputed by the appellant. It has only been argued during the hearing by the Ld. Advocate that discrepancy in markings is only a mere suspicion without there being any substantive proof and on this basis alone, the gold bar in question cannot be confiscated. 5.2 True, the gold bar in question was not seized in a customs area. However, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein will inconsequence become liable for penalty under Section 112 of the Act. The operation of Section 123 ibid is applicable even to gold and other notified goods seized outside the customs area. 5.3 The case laws relied upon by the Ld.Advocate do not help the case of the appellant. In the case of S. K. Chains (supra), the Tribunal found that as far as foreign markings gold is concerned, the onus placed by virtue of Section 123 has been discharged by the appellant to the required extent. In the case of Samir Kumar Roy (supra), the Tribunal noted the admission of sale of the gold in question to the appellant therein and took the view that onus placed on the appellant under provisions of Section 123 has been discharged to the requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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