Case Law Details

Case Name : Union of India Vs Imtiaz Iqbal Pothiwala (Bombay High Court)
Appeal Number : Customs Appeal No. 15 Of 2007
Date of Judgement/Order : 16/10/2018
Related Assessment Year :
Courts : All High Courts (4460) Bombay High Court (815)

UOI Vs Imtiaz Iqbal Pothiwala (Bombay High Court)

We are of the view that in the absence of evidence in the form of regular Books of Account, Registration under the Income Tax and Sales Tax, etc., cannot ispo­facto lead to the conclusion that the seized gold bars, are smuggled gold bars. These may lead to proceedings for breaches of other Acts but it does not follow from it that the gold bars are smuggled goods. In fact, if a person in possession of the stolen gold is able to establish that it had come into India after a proper declaration and compliance of the Act, no confiscation under the Act, can arise. Proceedings under the Indian Penal Code may be initiated by the police for theft, but it would not by reason of theft become smuggled goods. Moreover, smuggling as defined under Section 2 (39) of the Act, is an act or omission which will render goods liable to confiscation under Sections 111 of the Act for import and 113 of the Act for exports. On reading of Sections 111 and 113 of the Act, not keeping proper books of accounts or not being registered with the Income Tax and/or Sales Tax Authorities, is not an omission which renders the good liable for confiscation i.e. smuggled goods.

FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT

This Appeal under Section 130 of the Customs Act, 1962 (the Act) challenges the order dated 3rd June, 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal).

2 This Appeal was admitted on 28th June, 2007 on the following substantial questions of law:­

“(a) Whether in the facts and circumstances of the case and in law, the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) is justified in allowing the Appeal of the Respondents herein and setting aside the order of confiscation of the seized gold, by totally discarding the confessional statements given by the Respondents under the provisions of section 108 of the Customs Act, 1962, which are in the nature of admissible legal evidence, as clearly mandated by the Hon’ble Supreme Court in the case of (i) K. I. Pavunny v/s. The Assistant Collector (HQ), (1997) 3 SCC – 721 and (ii) Naresh J. Sukhwani v/s. Union of India (1996) SCC (Cri) 76?

(b) Whether in the facts and circumstances of the case and in law, the Tribunal is justified in holding that the Respondents have discharged their burden/ onus cast on them in terms of the provisions of section 123 of the Customs Act, 1962 to prove and/or establish that the huge quantity of 575 gold bars seized from their custody is not the smuggled one, inspite of the fact that no legal evidence, such as maintenance of any basic Books of Accounts whatsoever, Registration details under the provisions of Sales Tax, Payment of Purchase Price of the gold, Payment of Government Levies, like Income Tax, Sales Tax etc., duly supported by the Annual Returns, etc has been produced/ brought on record by the Respondents?”

3 It may be pointed out that the Revenue has filed only one Appeal from the order of the Tribunal dated 3rd June, 2005. This, in fact, when the impugned order is in respect of six Respondents. Respondent No.1 is the owner of the seized gold bars, Indian currency and the Jeep, confiscated by order dated 1st July, 2002 of the Commissioner of Customs. The above Confiscation was set aside by the impugned order dated 3rd June, 2005 of the Tribunal. The Respondent Nos.2 to 6 in this Appeal are employees of Respondent No.1 and on whom penalties are imposed under Section 112 of the Act, which have been deleted by the impugned order dated 3rd June, 2005. In fact, there should have been six different Appeals by the Revenue but only one appeal is filed. At the hearing also, submissions were made by the learned Additional Solicitor General only in respect of Respondent No.1 and no submissions were made in respect of Respondent Nos.2 to 6 in the context of the impugned order dated 3rd June, 2005. In fact, the questions as admitted are also only in respect of Respondent No.1. This possibly for the reason that the penalties upon Respondent Nos. 2 to 6 are consequential upon the impugned order of the Tribunal being reversed in case of Respondent No.1. Thus, in this appeal before us, there is no challenge to the impugned order dated 3rd June, 2005 to the extent it allowed the appeals of Respondent Nos.2 to 6.

4 Briefly, the facts leading to this Appeal, are as under:­

(a) On 8th March, 2000, 575 gold bars valued at Rs.3.09 Crores were found along with Indian Currency of Rs.21 lakhs from a cavity in a jeep, belonging to Respondent No.1. At that time, the jeep was being driven by Mr. Anis Ashraf (Driver of Respondent No.1);

(b) Respondent No.1 and his driver were not able to produce any documents in support of legal possession of the 575 gold bars and Indian currency of Rs.21 lakhs. This led to a reasonable belief on the part of the Officers of the Respondent that the goods are liable for confiscation. Therefore, the 575 gold bars and Rs.21 lakhs cash found were seized under Section 110 read with Section 123 of the Act. This as gold is a notified good under Section 123 of the Act, while cash was seized in the reasonable belief that it is sale proceeds of smuggled goods;

(c) On the date of seizure i.e. 8th March, 2000, the statement of Mr. Anis Ashraf (Driver of Respondent No.1) was recorded under Section 108 of the Act when he stated that the delivery of gold bars was taken from one Mr. Chetanbhai at Mumbai. However, in his subsequent statements, he indicates that gold bars were purchased from Ahmedabad. It was also explained that Rs.21 lakhs were sale proceeds of gold. These sale proceeds were received from one Mr. Padambhai who withdrew the amounts from Vyasa Bank, Nariman Point, Mumbai;

(d) On 9th March, 2000, Respondent No.1 made a statement under Section 108 of the Act to the Officers of Respondents. In his statement, Respondent No.1 stated that 575 seized gold bars were purchased from one Mr. Chandubhai (also known as Bhupendra Thakkar);

(e) At the same­time, on 9th March, 2000, the Officers of the Respondent recorded the statement of one Mr. Devang A. Patel at Ahmedabad. In the statement made under Section 108 of the Act, Mr. Patel, stated that he works for one Mr. Bhupendra Thakkar whose firms are – M/s. Pawan Jewellers and M/s. Paras Bullions. He also stated that he purchases gold bars from local dealers in Ahmedabad and delivers the same as per instructions of his employer Mr. Bhupendra Thakkar. Further, he also produced copies of invoices under which the gold was sold to Respondent No.1;

(f) On 10thMarch, 2000, Respondent No.1 in his Bail Application before the Magistrate claimed that the 575 gold bars were purchased from M/s. Pawan Jewellers and M/s. Paras Bullions, Ahmedabad. Invoices/ Bills in support of the same, was also produced along with the bail application;

(g) Thereafter, on 6th April, 2000 and 26th April, 2000, statements under Section 108 of the Act, were recorded of Mr. Bhupendra Thakkar alias Chandubhai who explained the sale of 700 gold bars to Respondent No.1. It was pointed out that (400 gold bars) was sold by his proprietary concern – M/s. Pawan Jewellers and the remaining 300 gold bars was sold by M/s. Paras Bullions. It was further pointed out in his statement that he also conducts business of M/s. Paras Bullions for and on behalf of its proprietor Mr. Vijay Patel;

(h) However, during investigation, it was found that M/. Paras Bullions was not in existence at the given address;

(i) During the course of investigation, Respondent No.1 was asked to explain the source of the amount paid to purchase the 700 gold bars between 20th February, 2000 to 6th March, 2000, aggregating to over Rs.3 Crores. This source was explained by Respondent No.1 as being comprised as of Rs.60 lakhs, earned by him in his business in the last 2-3 year and Rs.2 Crores and 50 lakhs being the loan taken from the market. However, Respondent No.1 was not in a position to indicate the name of the person from whom he had obtained the loan;

(j) Consequent to the above investigation, on 6th September, 2000, a show cause notice was issued by the Assistant Director – DRI to Respondent No.1, calling upon him to show cause why:­

(a) 575 gold bars of foreign origin valued at Rs.3.09 Crores should not be confiscated under Section 111 (d) and (i) of the Act;

(b) The Indian currency of Rs.21 lakhs found in the jeep should not be confiscated as sale proceeds of smuggled goods under Section 121 of the Act.

(c) The Armada Jeep in which the seized gold and cash were secreted should not along with other vehicles belonging to Respondent No.1 should not be confiscated under Section 115 of the Act; and

(d) Penalty under Section 112 (a) and (b) of the Act should not be imposed.

Besides, the other Respondents herein amongst others, were also called upon to show cause why penalty under Section 112 (a) and (b) of the Act should not be imposed upon each of them.

(k) The Respondents resisted the show cause notice. At the personal hearing, Respondent No.1 reiterated that the seized gold is not a smuggled gold. Therefore, no issue of its confiscation arises. The burden cast upon him by virtue of Section 123 of the Act, the Petitioner submitted has been discharged. Thus, the notice be dropped;

(l) On 1st July, 2002, the Commissioner of Customs (Adjudication) passed an order, confirming the show cause notice dated 6th September, 2000. The above confirmation , on consideration of evidence was on the basis that the theory of purchase of gold bars from local market is not acceptable. This, included the discrepancy in the bill books, inability to explain the funding for purchases and the frequent calls made by Respondent No.1 to Dubai. Thus, the 575 gold bars were confiscated under Section 111 (d) and (j) of the Act, Indian currency of Rs.21 lakhs were confiscated under Section 121 of the Act and the jeep in which the gold and cash were secreted, were confiscated under Section 115 of the Act. Besides, imposing a penalty of Rs.10 lakhs on Respondent No.1 and penalties varying from Rs.2,000 to Rs.5 lakhs upon the other Respondents under Section 112 of the Act; and

(m) Being aggrieved with the above order dated 1st July, 2000 of the Commissioner of Customs (Adjudication), the Respondents preferred appeals to the Tribunal. By the impugned order dated 3rd June, 2005, the Tribunal set aside the order dated 1st July, 2000 of the Commissioner of Customs (Adjudication) and allowed the Appeal of the Respondents.

5 It is against the order dated 3rd June, 2005 passed by the Tribunal that, the substantial questions of law referred to herein above, are admitted for our consideration.

6 Before we deal with the two substantial questions of law arising for our consideration in this appeal, it would be necessary to reiterate the position in law while considering an appeal under Section 130 of the Act to this Court. These appeals are limited only to substantial questions of law. Therefore, a pure question of law such as interpretation of a provision/ documents etc. or a mixed question of fact and/or law i.e. application of law on given facts, may give rise to a substantial question of law. Normally, a finding of fact unless it is perverse will not give rise to a substantial question of law and so also an interference from a finding of fact, will not alter its character as one of facts. This has so been held by the Apex Court in Sree Meenakshi Mills Ltd., Commissioner of Income Tax 31 ITR 28. Thus, the appreciation of evidence would also be a question of fact in the absence of the same being perverse and/or contrary to the settled position of law. If the impugned order of the Tribunal has taken a view, which is a possible view, then this Court would not interfere with the finding of fact arrived at by the Tribunal. Moreover, sub-section (4) of Section 130 of the Act, enables the Respondent at the final hearing to urge that the admitted question does not give rise to a substantial question of law.

7 Secondly, the questions which arise for our consideration in this case is in the context of the application of Section 123 of the Act in respect of the goods notified therein. Gold is an item which is notified under Section 123 of the Act and it provides that burden of proof in case of notified goods, would be upon the person from whose possession and/or the person who claims ownership of the goods to prove that the seized goods are not smuggled goods. However, before the aforesaid burden could be cast upon the person who claims to be the owner of the seized goods, the Revenue should be able to establish that the goods seized under Section 110 of the Act, was on a reasonable belief that the imported goods were smuggled goods. Therefore, where seizure is a subject of challenge on the ground of absence of reasonable belief then, the question of burden of proof on the person, claiming to be the owner of the goods, would arise only when the challenge to seizure is, negatived. In the facts of the present case, neither before us nor before the authorities under the Act, has the Respondent No.1 challenged the seizure for absence of reasonable belief that the seized gold was smuggled goods. Thus, the burden of proof in this case is upon the Respondent to establish that the seized gold bars are not smuggled.

8 We shall now take up for consideration, the substantial questions of law in seriation, as under:­

(A) Re. Question (a):­

(i) This question essentially proceeds on the basis that as the Respondent had made a confessional statement under Section 108 of the Act, it is admissible as evidence and warrants, confirming the show cause notice. This particularly, in the absence of the party being able to explain away the confession made. Even if we accept that a confessional statement, can be admitted as evidence, it must contain a confession by the deponent to form the basis of confirmation of the show cause notice.

(ii) We noted that statements of Respondent No.1 were recorded on 9th March, 2000, 15th March, 2000, 22nd March, 2000, 30th March, 2000 and 27th April, 2000.

(iii) We specifically called upon the learned Additional Solicitor General to show us any confessional statement made by Respondent No.1 and/or other Respondents i.e. Driver, Employees/ Agents to the effect that, the seized confiscated gold is a smuggled gold. However, he was unable to show us any confessional statements in respect of gold made either by Respondent No.1 and/or his Drivers/ Employee/ Agents. In fact, the impugned order of the Tribunal also records this finding of fact in respect of Respondent No.1 in para 14 of the impugned order dated 3rd June, 2005.

(iv) Thus, the occasion to apply the Supreme Court’s decision in the case of I. Pavunny V. Asst. Collector (1997) 3 ELT and Naresh Sukhwani v/s. Union of India (1996) SCC (Cri) 76, would not arise in the present facts.

(v) In the above view, no fault can be found in the impugned order dated 3rd June, 2005 on the above question.

(vi) Therefore, this substantial question of law is answered in the affirmative i.e. in favour of the Respondent ­Assessee and against the Appellant­ Revenue.

(B) Reg. Question (b):­

(i) The grievance of the Revenue as brought out in this question is that the burden of proof cast upon the Respondent under Section 123 of the Act, that they were not smuggled goods, is not discharged. This we note from the questions framed is only in view of the absence of legal evidence, such as maintenance of Books of Accounts, Registration with the Sales Tax, Income Tax etc. to show legal purchase of the gold.

(ii) We specifically asked the Revenue how the absence of the above could lead to the conclusion that the goods i.e. gold in the possession of Respondent No.1 is smuggled. The response of the Revenue was that the factors listed in the question are only illustrative of no evidence to establish licit ownership/possession of gold bars.

(iii) We are of the view that in the absence of evidence in the form of regular Books of Account, Registration under the Income Tax and Sales Tax, etc., cannot ispo­facto lead to the conclusion that the seized gold bars, are smuggled gold bars. These may lead to proceedings for breaches of other Acts but it does not follow from it that the gold bars are smuggled goods. In fact, if a person in possession of the stolen gold is able to establish that it had come into India after a proper declaration and compliance of the Act, no confiscation under the Act, can arise. Proceedings under the Indian Penal Code may be initiated by the police for theft, but it would not by reason of theft become smuggled goods. Moreover, smuggling as defined under Section 2 (39) of the Act, is an act or omission which will render goods liable to confiscation under Sections 111 of the Act for import and 113 of the Act for exports. On reading of Sections 111 and 113 of the Act, not keeping proper books of accounts or not being registered with the Income Tax and/or Sales Tax Authorities, is not an omission which renders the good liable for confiscation i.e. smuggled goods.

(iv) Therefore, we pointed out to the Revenue that it must otherwise point out that the burden cast upon the person, found in possession of notified goods under Section 123 of the Act, is not discharged.

(v) At this, the learned Additional Solicitor General emphasized the fact that the 575 seized gold bars were secreted in a specifically made cavity in jeep. This, according to him, would be done only in case the gold so secreted, was smuggled gold. Further, it is submitted by the Revenue that on 8thMarch, 2000, neither the Respondent No.1 and/or his driver ( Mr. Anis Ashraf) whose statement was recorded, could produce any documents in support of the legal possession of the gold.

(vi) At this, we invited the attention of the learned Additional Solicitor General to Section 123 of the Act. We pointed out to him the conduct of the Respondent on 8th March, 2000 did justify the reasonable belief for seizure. All the submissions made would only establish that seizure was justified as there was evidence to come to a reasonable belief that gold (notified item) is smuggled. This, would then throw the burden upon the Respondent to establish that the gold is not smuggled. The impugned order dated 3rd June, 2005 of the Tribunal has not allowed the Respondent’s appeal on the ground that the seizure itself was bad, absent reasonable belief. It allowed the appeal on the ground that the Respondent No.1 had discharged the burden of showing that gold bars are not smuggled.

(vii) The learned Additional Solicitor General drew our attention to various statements of Respondent No.1 under Section 108 of the Act, which indicated that he was not filing income tax return, so much so he is unable to explain the source of the funds to purchase the gold. This for the reason that though he states that the money was borrowed, he is unable to state the name of the persons who lent him the money. It is further submitted that there were differences in bills issued for sale of gold by M/s. Paras Jewellers and M/s. Pavan Bullions, then those used for sale to other persons. There were also discrepancies in the statements regarding delivery of gold either in Ahmedabad or in Mumbai. It is emphasized that the Respondent No.1 had made telephone calls to Dubai. All the above facts, according to the Revenue, would establish that the seized gold bars were smuggled and the Respondent No.1 had failed to discharge the burden cast upon him under Section 123 of the Act.

(viii) On the other hand, Mr. Nankani, learned Senior Counsel for Respondent No.1, submits that:

(a) the question as admitted does not give rise to any substantial question of law as the view taken is one on facts and a possible view. Therefore, no interference is warranted;

(b) In any case, the burden of proof cast upon Respondent No.1 under Section 123 of the Act, stood discharged on not only giving details of the source of gold bars but also giving evidence of source of source. Therefore, confiscation of the gold is not warranted as held by the impugned order;

(c) The Explanation was initially offered on the date of seizure by the Respondent’s Driver that the delivery of the gold bars was taken from Mumbai. However, later in the subsequent statement, it is stated to be taken from Ahmedabad. This later statement is in accord with the documents produced in respect of the seized gold bars and corroborated by the statements of two independent witnesses viz: Devang Patel (recorded on 9thMarch, 2000 and 14th March, 2000) and Mr. Bhupendra Thakkar alias Chandubhai (recorded on 6th April, 2000 and 26th April, 2000). The earlier statement was clearly a mistake on the part of the Driver;

(d) So far as the address of M/s. Pavan Bullions being found to be incorrect, our attention is invited to para 16 of the impugned order which has considered this aspect. Therefore, no interference on the above account is, called for.

(ix) The impugned order dated 3rd June, 2005 has held that the Respondent No.1 has discharged the burden of proof under Section 123 of the Act. This as the Respondent No.1 had explained the source of his purchase namely from M/s. Paras Jewellers and M/s. Pavan Bullions. In fact, the person running two firms viz; Mr. Bhupendra Thakkar has himself admitted in his statements to the Office of DRI that the seized gold has been sold by him to Respondent No.1. In fact, on 9th March, 2000, employee of Mr. Bhupendra Thakkar i.e. Mr. Devang Patel, in his statements had shown copies of the invoices to the Officers of DRI, evidencing sale of gold by M/s. Paras Jewellers and M/s. Pavan Bullions to Respondent No.1. Besides, the bills showing the acquisition of gold from M/s. Paras Jewellers and M/s. Pavan Bullions were also produced with the bail application on 10th March, 2000 filed by Respondent No.1;

(x) Further, Mr. Bhupendra Thakkar,in his statement has also explained the source of the gold in possession of M/s. Paras Jewellers and M/s. Pavan Bullions namely – purchase from Companies and firms who in turn had purchased the same from the Banks. The purchase and sale of gold by M/s. Paras Jewellers and M/s. Pavan Bullions were reflected in their separate books of account which were also produced before Officers of DRI. Nothing adverse is shown to us which would justify ignoring the same;

(xi) It is noteworthy that the Officers of DRI did not pursue investigation further with M/s. Paras Jewellers and M/s. Pavan Bullions and the other concerned entities. Thus, not pursuing the further investigation, would imply that the Officers of the DRI were satisfied with the explanation given by Respondent No.1 and that of Mr. Bhupendra Thakkar on behalf of M/s. Paras Jewellers and M/s. Pavan Bullions. The impugned order, particularly, records the fact that the discrepancies were noted by Commissioner with regard to the bill book. However, it holds that it is not of much consequence in view of the fact that these discrepancies were also found in respect of bills issued to other customers. So far as the inconsistency in the statement of the Driver of Respondent No.1 is concerned viz; the place from where gold was taken possession of i.e. Ahmedabad or Delhi, is one plea of inconsistent evidence. The subsequent statement of taking possession of gold from Ahmedabad, in fact, is in accordance with documents on record and corroborated with the statement of Mr. Bhpendra Thakkar and Mr. Devang Patel. The fact that M/s. Pavan Bullions were not found at the given address when visited, is to be considered in the light of the fact that, M/s. Pavan Bullions were duly registered with the Sales Tax Authorities, having a sales tax account number, their accounts were audited by a Chartered Accountant and relevant income tax returns were also produced to establish the existence of M/s. Pavan Bullions. Further, the Tribunal found that M/s. Paras Jewellers and M/s. Pavan Bullions were firms in existence and not fictitious firm. This finding of fact, on the basis of record, is a possible view as the Revenue in the face of the above record with the authorities, did not investigate further or bring on record evidence to demolish the evidence brought on record by Respondent No.1. The impugned order dated 3rd June, 2005 thus noted that the discrepancies noted ought to have been pursued further. This not having done, results in the explanation offered by Respondent No.1, being accepted.

(xii) In fact, the Supreme Court in R.V.E. Venkatachala Gounder v/s. Arulmigu Viswesaraswami & V.P. Temple 2003 (8) SCC J 752 has observed as under:-

“ However as held in A. Raghavamma v/s. A. Chenchamma (AIR 1964 (SC) 136) there is an essential distinction between the burden of proof and onus of proof: burden lies upon a person who has to prove the facts and never shifts onus of proof shifts. Such a shifting is a continues process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff, has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff, shall be held to have been discharged so as to amount to proof of the plaintiff title.”

Therefore, the principle laid down in R.V.E. Venkatachala Gounder (supra) is applicable to adjudicating proceedings under the Act. By virtue of Section 123 of the Act, the burden to prove that the gold is not smuggled, is on the person found in possession of the gold. Thereafter, the onus keeps shifting. The impugned order holds the absence of the Revenue being able to discharge the onus on it after the Respondent no.1 has discharged the primary onus by showing the source of its purchase of gold. In fact, Respondent No.1 has also shown the source of its source. Thus, shifting the onus upon the Revenue. In the absence of the Revenue discharging its onus, it must follow that in the present facts, the Respondent has discharged the burden of proof imposed upon him under Section 123 of the Act.

(xiii) Being of the view that the above observations would apply to the present facts, we enquired of the Revenue of its stand in respect of the applicability of the above principle to the present facts. Mr. Sethana, learned Counsel for the Revenue responded by stating that it will not apply to the present facts as it does not deal with Section 123 of the Act. It is submitted that in terms of Section 123 of the Act, the burden is upon the Respondent and that has to be discharged up to the hilt. We are unable to understand the above submission. Section 123 of the Act, statutorily imposes a reverse burden of proof i.e. not upon the person (Revenue) who assert that the gold in possession of the Respondent No.1 is smuggled gold but on the person (Respondent No.1) who is found in possession of goods notified under Section 123 of the Act. However, this reverse burden of proof does not do away with the manner of discharging the burden of proof. Thus, the manner of discharging the burden of proof by shifting of the onus would be as applicable to all other civil proceedings. Mr. Sethna, placed reliance upon Nizam Institution of Medical Sciences v/s. Prasantha S. Dhananka & Others 2009 (6) SCC 1 in particular, paras 77 and 78 thereof. We find that this decision, in fact, reiterates the general principle laid down by the Apex Court in R.V.E. Venkatachala Gounder (supra) about the shifting onus. Besides, one must not loose sight of the fact that the Nizam Institution of Medical Sciences (supra) decision dealt with Medical negligence, where the doctors would be best able to explain the circumstances leading to a particular result. In fact, in some cases of medical negligence, the maxim ‘Res ipsa loquitor’ i.e. the thing speaks for itself would also apply.

(xiv) Thereafter, Mr. Sethana, placed reliance upon the decisions of the Patna High Court in Union of India v/s. Md. Mazid @ MD. Tufani 354 ELT 102 and Commissioner of Customs (P) v/s. Nirmala Mitra 346 ELT 254. In Md. Mazid (supra), the Court was dealing with the issue of burden of proof in case of the seizure of notified goods under Section 123 on reasonable belief that they are smuggled goods. In the present facts, that is not the issue arising, as there is no dispute before us that the seizure In this case was justified.Therefore, the above decision will not apply. In Nirmala Mitra (supra), the Court held that mere assertion by the person in possession of gold (for purposes of Section 123 of the Act), that it was purchased, cannot amount to satisfactory of proof of legal purchase. In this case, Respondent No.1 has backed its assertion of purchase of gold by production of bill as well as statement of the seller. Therefore, the above decision will also not apply to the present facts.

(xv) It is important to bear in mind that it is not the case of the Revenue before us that burden of proof cast by Section 123 of the Act will only be satisfied when the legal import of gold bars is evidenced by the documents, establishing its import by also having Bills of Entry, and an order for home clearance by the Customs, in his possession. Advisedly so, as after the repeal of Gold (Control) Act, gold is available as a item of trade, like any other goods. The satisfactory discharge of burden of proof, will in the absence of any legislative parameter for its satisfaction, would necessarily be the satisfaction of the Authority concerned. This satisfaction of discharge of burden of proof would depend upon appreciation of the facts by the Authority concerned as there is no absolute standard of burden of proof. In civil cases, discharge of burden of proof would be varying degrees of probability. Therefore, if the Tribunal is satisfied that burden is discharged and the finding is not perverse, then no case for interference in second appeal is, warranted.

(xvi) In this case, we find that the impugned order of the Tribunal has on appreciation of facts, come to a conclusion that the Respondent No.1 herein has discharged his burden under Section 123 of the Act, that the 575 gold bars seized on 8th March, 2000 were not smuggled gold. This finding of fact has not been shown to us, to be perverse. Thus, it is a possible view on the available facts and the evidence produced by Respondent No.1;

(xvii) In the above view, this question being one of finding of fact, based on appreciation the evidence, would not justify our interfering with the impugned order of the Tribunal;

(xviii)Accordingly, Question No.(b) is answered in the affirmative i.e. in favour of the Respondent and against the Appellant.

9 In the above view, both Questions (a) & (b) are answered in the affirmative i.e. in favour of the Respondent and against the Appellant.

10 Accordingly, Appeal dismissed.

11 In view of the dismissal of the Appeal itself, nothing survives in the Notice of Motion and the same is also disposed of as infructuous.

12 At this stage, Mr. Sethna, learned Counsel appearing for the Revenue seeks a stay of this Order for a period of six weeks from today. This to enable the Revenue to approach the Hon’ble Supreme Court.

13 Mr. Nankani, Sr. Counsel for the Respondent opposes this application. It is pointed out by him that even though, the Tribunal had passed an order as far back as 2005, Respondent has yet not released the gold, in the absence of any stay. This, in spite of repeated requests. Thus, no stay be granted, of this order.

14 Considering the fact that the gold has been in possession of the Revenue since 2000, no injustice would be caused to the Respondents if this order is not implemented for a further period of four weeks. Appellants are entitled to challenge this order dismissing its appeal, before the Hon’ble Supreme Court.

15 In the above view, we grant a stay of the order passed today for a period of four weeks from the date it is uploaded on the web site of this Court.

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