Case Law Details
Deepak Handa VsPrincipal Commissioner of Customs (Preventive) (Delhi CESTAT)
Conclusion: Since assessee could not discharge their responsibility of proving non-smuggled nature of the seized foreign marked gold as per section 123 of Customs Act thus, the confiscation of the gold bars, gold coins and small pieces of gold under section 111(d) and section 111(i) was correct.
Held: In the instant case, the total gold weighing 15.389 kg estimated to be worth about Rs. 4.6 crores was seized under the Customs Act as Deepak did not have any bills for the gold nor any documents to show that the foreign marked gold was legally imported into India. It was held that the confiscated gold was covered by Section 123 of the Customs Act and so the burden of proving the non-smuggled nature of the seized goods shifted to assessee. The gold jewellery confiscated was not covered by section 123 of the Customs Act because it had not even been alleged that it was smuggled. It was alleged to have been converted from smuggled gold which was not established in this case. Currency was goods as per Customs Act but it was not covered by section 123 and there was also no allegation that it was smuggled. The allegation was that it was sale proceeds of smuggled goods and had been confiscated under section 121 but Revenue could not prove that the cash was sale proceeds of smuggled goods. The officers did have a reasonable belief that the foreign marked gold was smuggled in the factual matrix of this case and hence the burden shifts upon assessee under section 123. Assessee could not discharge their responsibility of proving non-smuggled nature of the seized foreign marked gold thus, the confiscation of the gold bars, gold coins and small pieces of gold under section 111(d) and section 111(i) was correct. Confiscation under section 111(p) was not correct since gold was not a notified good under Chapter IVA of the Customs Act. Confiscation of the gold jewellery under section 111(d), 111(i) and 111(p) read with section 120 was not sustainable because there was no evidence on record that the jewellery was made out of smuggled gold. Confiscation of the cash as sale proceeds of smuggled goods under section 121 was not sustainable because Revenue could not prove that the seized cash was the sale proceeds of smuggled gold. The penalty was correctly imposed under section 112 of the Customs Act on assessee but considering that confiscation of jewellery and cash was not sustainable, the quantum of penalty needs to be reduced.
FULL TEXT OF THE CESTAT DELHI ORDER
These two appeals have been filed assailing orders dated 30.9.2019 and 7.10.2019 passed by the Commissioner of Customs (Appeals), New Custom House, New Delhi, both of which emanate out of appeals against the same order-in-original passed by the Additional Commissioner of Customs deciding on a Show Cause Notice dated 21.2.2018 issued by the Additional Director, Directorate of Revenue Intelligence, New Delhi. Hence, both the appeal are being disposed of together.
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