Commissioner of Customs, Amritsar v. Customs, Excise and Service Tax Appellate

CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D. D. Sharma, Advocate for the appellant. * * * ADARSH KUMAR GOEL, J. (Oral) :

Revenue has preferred this appeal under Section 130 (2) (a) of the Customs Act, 1962 against order dated 29.3.2007, Annexure P-3, passed by respondent no.1 in Appeal No. 939 of 2005, proposing to raise following substantial questions of law :- “i) Whether the burden of proof imposed by Section 123 of the Customs Act, 1962 i.e. burden to prove that the goods are not smuggled, upon the person from whose possession the goods were seized, stands discharged in the instant case. In the instant CUSAP No. 4 of 2008 2 case the person has purportedly purchased the notified goods from some other person and the person or the said other person did not prove its legal import of the said goods. ii) Whether the bill produced by the counsel of the party after 11 days of the seizure can be given credence especially when the person from whom the gold was seized never mentioned of the said bill despite the fact that his two statements were recorded under Section 108 of the Customs Act 1962 on

19.02.2001 and 21.02.2001 and also when variation has been found between weight of the gold actually seized and weight of the gold mention in the bill No.2 dated

17.2.2001 produced after eleven days of the seizure. In these two statements he tried to mislead the investigation by giving different explanation for acquisition for gold, but never mentioned of purchase of gold from M/s Dhancholia Sons of Delhi or about his visit to Delhi for the purpose.”

On 19.02.2001, 18 Gold Biscuits were seized from respondent no.2. His statement was recorded which was followed by show cause notice for action under Section 111 (d) of the Customs Act, 1962. After due procedure, the adjudicating authority ordered confiscation and imposition of penalty. The said order was affirmed by Appellate Authority. However, on further appeal, the Tribunal upheld plea of respondent no.2. It was CUSAP No. 4 of 2008 3 observed :-

9. The bill produced by appellants showed weight of gold was 2099.520 whereas as per the receipt the weight was 2098.800. In find merit in the appellant that the difference in weighment is .03% and the same can be due to weighment error. In respect of the contention that bill was produced late, I find that the appellant was under the custody of the revenue and when he was produced before the Judicial Magistrate, the appellant produced the bill and the same was got verified and the genuineness of the bill is not in doubt. The appellant Shri B. Nath also produced the books of account where the sale of gold bars in question was duly reflected. The copies of account are on record and the same are not disputed by revenue. In these circumstances, findings Commissioner (Appeals) that the proper co- relation has not been established between the seized gold and the bill produced are not justified. The impugned order is set aside and the appeals are allowed.

We have heard learned counsel for the appellant. In view of finding recorded by the Tribunal that the assessee gave valid explanation and difference in weight mentioned in the receipt CUSAP No. 4 of 2008 4 produced by the assessee and the weight of gold recovered was due to weighment error and the bill was genuine, no substantial question of law arises.

The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE December 09, 2008 monika ( L. N. MITTAL ) JUDGE