Ashok Kumar Agarwal vs Union of India

Arindam Sinha, J. - The petitioner was found to be the owner of gold biscuits confiscated. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) by its order dated 11th February, 2002 [2002 (142) E.L.T. 662 (Tribunal)] found, inter alia, as follows :

"It is seen that the gold is one of the specified item under the provisions of section 123 of the Customs Act and as such the onus to prove that the same have been legally imported into India lies upon the person from whose possession the same is recovered or who claims to be the owner of the gold in question. Shri Ashoke Kr. Agarwal has admitted the ownership of the gold biscuits recovered from the possession of Shri Jitendra Kamti and have produced documents to show that the same have been legally purchased by him from M/s. Laljibhai Kantibhai Soni of Ahmedabad and have been legally imported into India. The enquiries were conducted by the Revenue from M/s. Laljibhai Kantibhai Soni of Ahmedabad who have admitted having sold the gold biscuits to the appellant. Further enquiry is conducted by the Revenue from M/s. Chowksi Arvind Kumar and M/s. MMTC have revealed that the gold biscuits imported by M/s. MMTC were of a particular marking ''credit swisse''. The gold biscuits recovered from the possession of the second respondent were bearing markings as ''UBS Union Bank, Switzerland'' ''Assayer Bonder'' and one piece was having the markings as Swiss Bank Corporation of ''Tentolas-999.0''. As such the question required to be decided in the present appeal is as to whether the biscuits recovered from the second respondents'' possession and claimed to have been imported by M/s. MMTC are the same and as to whether the respondents have been able to discharge the legal onus placed upon them under the provisions of section 123. M/s. MMTC has nowhere denied that the gold biscuits imported by them under the relevant bill of entry and sold to M/s. Chowksi Arvind Kumar were with the markings ''credit swisse''. This fact is also evident from the examination report appearing at the back of the bill of entry. It is thus the biscuits carrying markings as ''credit swisse'' which were sold to them [by] M/s. Chowksi Arvind Kumar, which in turn were sold to M/s. Laljibhai Kantibhai Soni of Ahmedabad, who sold the same to the respondent. In these circumstances the biscuits recovered from the possession of Shri Jitendra Kamti ought to have been with the markings ''credit swisse''. Inasmuch as the markings appearing on the five biscuits of gold are different than ''credit swisse'', the same has been held to be not covered by the documents produced by the respondents by the Addl. Commr. and in my views rightly so."

The petitioner has impugned the said order inviting judicial review thereof in exercise of power under Article 226 of the Constitution of India.

Mr. Chakrabarti, learned Advocate appearing on behalf of the petitioner submits that the documents produced by his client could not be faulted by the department. There is no description in the documents regarding purchased gold biscuits by his client that the gold biscuits sold bore the mark ''credit swisse''. He submits further, there is no requirement under law to provide such description. In such a situation, a finding against the petitioner, who is the owner of gold, that it was smuggled, was perverse. His client had purchased from a person who was the second purchaser of gold biscuits imported by MMTC. In the absence of description in sale documents regarding the mark appearing on the gold biscuits sold, once the onus had been shifted upon the department, the department had to discharge such onus by demonstrating at which point the gold biscuits became those which were not imported by MMTC in the consignment.

Mr. Bharadwaj, learned Advocate appearing on behalf of the Customs Authority could not dispute the submissions made by Mr. Chakrabarti regarding requirement of law for description of mark to be given as appearing on the item sold. He also could not demonstrate from the record at which point or till which of the several sales of the gold biscuits imported by MMTC by the identified consignment, the description of the mark was given in the sale documents.

The burden of proof lay on the petitioner to discharge in the matter of proving the gold biscuits said to belong to him were not smuggled goods. By producing documents, which could not be disputed, the onus shifted to the department. The department sought to trace the origin of the goods to the identified consignment imported by MMTC. However, the department must do something more to demonstrate that the gold biscuits confiscated belonging to the petitioner were not duly purchased by the petitioner under documents produced to enable confiscation thereof as smuggled goods.

For the reasons aforesaid, the impugned order is set aside to the extent it affects the petitioner. The Tribunal will revisit the matter and give its finding as expeditiously as possible upon allowing opportunity of hearing. This order is to be communicated to the learned Tribunal.

The writ petition is disposed of.