Onus to establish legal acquisition of foreign marked goods lies on assessee for waiver of penalty under Section 112 of the Customs Act, 1962.

PJ/Case Law /2016-17/3368

Case: -BASUDEB DAS versus COMMISSIONER OF CUS. (PREV.), SHILLONG

Citation:-2016 (342) E.L.T. 249 (Tri. - Kolkata)
Issue:-Onus to establish legal acquisition of foreign marked goods lies on assessee for waiver of penalty under Section 112 of the Customs Act, 1962.
Brief facts:- This appeal was filed by the appellant against Order-in-Appeal No. 06/CUS(A)/GHY/2010, dated 21-2-2010 passed by the Commissioner (Appeals), Guwahati. Under this OIA dated 21-2-2010 the First Appellate Authority had upheld OIO dated 24-2-2009. The Adjudicating Authority while deciding the issue under OIO dated 24-2-2009 imposed penalty of Rs. 2.5 lakh upon the appellant under Section 112 of the Customs Act, 1962.

Appellant’s contention:- None appeared on behalf of the appellant when the case was called out for hearing. On the last occasion when the case was fixed for hearing on 30-3-2016 appellant requested for adjournment.

Respondent’s contention:- Sri S.N. Mitra, AC (AR) appearing on behalf of theRevenue argued that appellant was found with 12 numbers of foreign marked smuggled gold biscuits and 3 numbers of yellow metal bars. Ld. AR argued that appellant was aware of the foreign origin of smuggled gold as per Paragraph 3.2(ix) of OIO dated 24-2-2009. That as per Paragraph 7.4 of the OIO dated 24-2-2009 appellant also admitted to have knowledge of the foreign origin of gold biscuits. That Adjudicating Authority in Paragraph 8.6 of the OIO dated 24-2-2009 also gave a specific finding that appellant was a repeated offender. He relied upon the case law of the same appellant Basudev Dasv. Commissioner of Customs, Shillong [2002 (143)E.L.T.358 (Tri.-Kolkata)] where in another case of smuggled gold appellant was imposed penalty of Rs. 5.00 lakhs by the Adjudicating Authority which was reduced to Rs. 2.00 lakhs by this Bench. That appellant further went to the High Court in that case and Hon’ble Gauhati High Court under Basudev Dasv. Union of India [2011 (272)E.L.T.668 (Gau.)] reduced the penalty to Rs. 1.5 lakhs while upholding the case against the appellant.

Reasoning of judgement:-It was found thatpenalty of Rs. 2.5 lakhs was imposed upon theappellant under Section 112 of the Customs Act, 1962 for carrying foreign marked gold biscuits. During interception on 27-12-2006 appellant could not produce any receipt/document showing legal acquisition of such gold of foreign origin. As per Section 123 of the Customs Act, 1962 onus was on the appellant to establish legal acquisition of foreign marked gold. In his statements recorded on 27-12-2006 and 28-12-2006 appellant admitted that he was carrying gold of foreign origin from Imphal and had the knowledge of its foreign origin. It was also observed from his reply to the show cause notice that said gold of foreign origin was carried in a concealed manner. Further appellant was a repeated offender and had earlier been penalized for smuggling of gold which had also been upheld by the Apex Court in the earlier proceedings. Based on the above observations appellant did have a case for waiver of penalty which was correctly imposed under Section 112 of the Customs Act, 1962. Appeal filed by the appellant was required to be dismissed.
Decision:-APPEAL DISSMISSED
Comment:- The analogy of case is that the appellant was indulged in smuggling and he was unable to establishlegal acquisition of such gold of foreign origin. As per Section 123 of the Customs Act, 1962 onus was on the appellant to establish legal acquisition of foreign marked gold and therefore the penalty was rightly imposed. Further As the appellant was proved a repeated offender and guilty under section 123 of Customs Act, penalty was not waived.
Prepared by:-RAKSHAY TATER

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