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4. The Ld. Authorized Representative of the Revenue submitted that the gold has been seized from the possession of the three persons viz. Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das, who have categorically stated that Shri Partha Ranjan Saha is the owner of the gold and mastermind of the Appeal No(s).: C/75118-75121/2016-DB smuggling of the gold. He submits that the apprehended persons were not having any documents in their possession at the time of seizure, for the licit purchase of the gold. Even now they are not able to produce any documents for its legal procurement. He referred to the decision of the Hon'ble Calcutta High Court in the case of Commissioner of Customs (Preventive) v. Shri Rajendra Kumar Damani [2024 (5) TMI 730 - Calcutta High Court] wherein the Hon'ble High Court has held that in terms of Section 123 of the Customs Act, in respect of the gold with foreign markings and having 99.9% purity, the onus is on the person who claims ownership of the gold that they were not smuggled gold; as the persons involved have not yet discharged their onus, the goods have been rightly confiscated. He also cites the decision of the Hon'ble Delhi High Court in the case of Commissioner of Customs (Export) v. Ashwini Kumar Alias Amanullah [CUSAA 37/2021 & CM APPL. 34847/2023 dated 15.09.2023 - Del HC] wherein the Hon'ble High Court has observed that seized goods cannot be released on payment of redemption fine. He has also referred to the decision in the case of Nidhi Kapoor &ors. v. Principal Commissioner and Addl. Secretary to the Government of India &ors. [W.P. (C) 8902/2021 dated 21.08.2023 - Del HC] wherein it has been held that when the burden under Section 123 ibid. is not proved, the gold seized is liable for confiscation. He therefore supported the impugned order confiscating the gold and imposing penalties on the Appellants.

5. Heard both sides and perused the appeal records.

Appeal No(s).: C/75118-75121/2016-DB Customs Appeal No(s). 75118 to 75120 of 2016:

6. We observe that a total quantity of 36 pieces of gold weighing 5965.76 grams were sized from Shri Ashish Kumar Dutta, Shri Goutam Saha and Shri Ranjit Das, the Appellants herein, on 19.03.2014. It is on record that they were not having any documents for the licit procurement of the said gold. The Ld. Counsel appearing on their behalf have admitted that even today, they are not having any documents for the licit purchase of the said gold. His submission is that gold is not a prohibited item and according to the decision cited by him in the case of Commr. of Cus., New Delhi v. Ashwini Kumar Alias Amanullah [2021 (376) E.L.T. 321 (Tri. - Del.)], the goods could not be absolutely confiscated and ought to have been released on payment of redemption fine as per Section 125 of the Customs Act, 1962. Accordingly, he prayed for setting aside the order of confiscation and for release of the gold on payment of redemption fine. He also prayed for reduction of the penalties imposed on these Appellants.

6.1. In this regard, we observe that the seized goods were bearing foreign markings and having a purity of 99.90%. Gold with a foreign marking and having 99.90% purity, is a notified item listed under Section 123 of the Customs Act and accordingly, the burden of proving that it is not smuggled gold lies on the person who claims ownership of the gold. In this case, we find that the Appellant Nos. 1, 2 and 3 have claimed ownership of the gold and hence, it is their responsibility to establish that the gold was not smuggled into India. For this purpose, these Appellants have been asked to produce documents in their possession which indicate licit procurement of Appeal No(s).: C/75118-75121/2016-DB the said gold. However, the Appellants have categorically admitted that they were not in possession of any such documents. Therefore, the Appellant Nos. 1 to 3 have not discharged their onus of proving the ownership of the gold in question in terms of Section 123 of the Customs Act. Thus, we hold that the adjudicating authority has rightly confiscated the gold under Section 111(b), 111(d) and 111(f) of the Customs Act, 1962.

6.4. By relying on the decisions cited supra, we hold that the gold cannot be released to the Appellants on payment of redemption fine. Accordingly, we uphold the order of confiscation of the seized gold.

6.5. Regarding imposition of penalties on the Appellant Nos. 1, 2 and 3, it has been submitted that they are the owners of the gold, but were not having any documents to establish the licit procurement of the gold. As the gold in question has been absolutely confiscated, we are of the view that the penalties imposed on these Appellants is high as compared to the value of gold involved and the nature of offence committed in this case. Therefore, considering the roles played by the Appellants, we observe that the penalties imposed on them are on the higher side and it can be reduced. Accordingly, we reduce the penalties imposed on them as follows: -