Judgment :- Bhaskar Bhattacharya, J. This appeal is at the instance of an appellant before the Customs, Excise & Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, and is directed against an order dated 16th September, 2004 passed by such Tribunal dismissing the appeal preferred by the appellant and upholding the order of confiscation under Sections 111(b) and 111(d) of the Customs Act, 1962 read with Section 121 of the said Act and imposition of penalty under Section 112 of the said Act. Being dissatisfied, the appellant has come up with the present appeal. The facts giving rise to filing of this appeal may be summed up thus: a) The Officers of the Directorate of Revenue Intelligence, Siliguri Regional Unit, along with the Officers of Coochbehar Central Excise Division, apprehended one Md. Sahanat Ali while he got off from a bus arriving from Dinhata. On being asked, he submitted that he was carrying seven pieces of gold biscuits of foreign origin concealed inside his anklets. On being further asked, the said Md. Sahanat Ali stated that one Shri Rakesh Somani, son of Shri Nand Kishore Somani, had given the said seven gold biscuits for delivery to one Shri K. C. Banik at Coochbehar Mini Bus Stand and the gold biscuits were purchased illegally from different sellers who brought them in an unauthorized manner into India. He named another Shri Babla Ghosh of Dinhata and one Shri Sohin Bhai of Rangpur, Bangladesh. Md. Sahanat Ali was found to carry a small amount of Bhutanese Currencies in the pocket of the shirt worn by him and he stated that the Bhutanese Currencies were given to him by one Rakesh Somani for getting the same changed from any seller engaged in unauthorized money changing business. b) The gold was weighed in presence of Md. Sahanat Ali and two other witnesses. Md. Sahanat Ali could not produce any valid document in support of the gold biscuits and the Bhutanese Currencies, which were seized under Section 110 of the Customs Act on the reasonable belief that those were imported into India in contravention of the provisions of Sections 3 and 4 of the Foreign Trade Development and Regulations Act, 1992 read with Section 11 of the Customs Act, rendering themselves liable for confiscation under Sections 111 and 121 of the Customs Act. c) A statement was recorded under Section 108 of the said Act from Md. Sahanat Ali wherein he reiterated what had been confessed by him during the course of initial interrogation. Over and above, he further deposed that he was an employee of Shri Nand Kishore Somani for the last five to six years. He knew that his master was engaged in the illegal foreign exchange business in close association of one Shri Babla Ghosh of Boarding Para, Dinhata and another Sohin Bhai of Bangladesh. In his statement, Md. Sahanat Ali denied having any knowledge of the address of Shri K. C. Banik, but he knew him by face only, to whom he was directed by his master to hand over the confiscated gold biscuits at Coochbehar Mini Bus Stand. He further deposed that on earlier three occasions, he had delivered such goods to three different persons. d) Investigation was carried out by the D.R.I. in the case and a show cause notice was issued to the appellant under Section 124 of the Customs Act and to the persons implicated in the instant case proposing confiscation of the gold biscuits and the Bhutanese Currencies under Sections 111(b) and 111(d) and 121 of the Customs Act and penal action under Sections 112 and 117 of the said Act. e) The adjudicating authority confiscated the gold biscuits under Sections 111(b) and 111(d) of the Customs Act. The Bhutanese Currency was confiscated under Section 121 of the said Act and the anklets used for concealing the gold biscuits were also confiscated under Section 119. Personal penalties were imposed at different rates considering the gravity of offences on those appellants. f) Being dissatisfied with the order of the adjudicating authority, all the appellants filed individual appeals to the Commissioner (Appeals) who vide his order rejected the three appeals and confirmed the order of the lower authority. g) Being dissatisfied, the appellants preferred three appeals before the Tribunal below and by the order impugned in this appeal, the Tribunal has dismissed the appeals brought by the three appellants. h) Being dissatisfied, Nand Kishore Somani alone has preferred the present appeal under Section 130 of the Customs Act. Mr. g) Being dissatisfied, the appellants preferred three appeals before the Tribunal below and by the order impugned in this appeal, the Tribunal has dismissed the appeals brought by the three appellants. h) Being dissatisfied, Nand Kishore Somani alone has preferred the present appeal under Section 130 of the Customs Act. Mr. Roy, the learned Advocate appearing on behalf of the appellant, strenuously contended before us that the Tribunal below as well as the other authorities below erred in law in totally overlooking the fact that the customs authorities failed to discharge the burden of proving the fact that the gold biscuits were of foreign origin brought to India improperly by the appellant. Mr. Roy contends that his client has proved the receipt granted by a seller having appropriate licence to sell gold and thus, the moments of such receipt was produced and the initial burden was discharged, the onus shifted upon the customs authority to show that such receipt was a manufactured one. Mr. Roy contends that in the absence of examination of the seller of such gold biscuits, as reflected from the receipt produced by the appellant, the Tribunal below ought to have held that the appellant had discharged his initial onus of proving the fact that the said gold biscuits were not imported illegally from Bangladesh, as alleged. Mr. Roy further submits that the alleged confession of Sahanat Ali having been subsequently retracted, the authorities below erred in law in relying upon the confession originally made by Sahanat Ali. In support of his further contention, Mr. Roy placed strong reliance upon the following decisions: 1. S. K. Chains Vs. Commissioner of Customs (Prev.), Mumbai, reported in 2001 (127) ELT 415; 2. Samir Kumar Roy Vs. Commissioner of Customs (Prev.), Calcutta, reported in 2001 (135) ELT 1036; 3. Rasilaben H. Rathod Vs. Commissioner of Customs, Ahmedabad, reported in 2008 (226) ELT 641; 4. Commissioner of Customs (Prev.), West Bengal Vs. Sadhan Kr. Das, reported in 2010 (251) ELT 551; 5. Commissioner of Customs (P), W.B. Vs. Golak Chandra Kamilla, reported in 2006 205) ELT 665; 6. Commissioner of Customs (Preventive) Vs. Puni Dhapa Lokeswara Rao, reported in 2009 (248) ELT 141; 7. Kadarbhai J. Vora Vs. Commissioner of Customs, Ahmedabad, reported in 2004 (170) ELT 555; 8. Rup Chand Jain Vs. Collector of Customs (Preventive), Calcutta, reported in 1996 (88) ELT 335 ; 9. Commissioner of Customs, Jaipur Vs. Commissioner of Customs (Preventive) Vs. Puni Dhapa Lokeswara Rao, reported in 2009 (248) ELT 141; 7. Kadarbhai J. Vora Vs. Commissioner of Customs, Ahmedabad, reported in 2004 (170) ELT 555; 8. Rup Chand Jain Vs. Collector of Customs (Preventive), Calcutta, reported in 1996 (88) ELT 335 ; 9. Commissioner of Customs, Jaipur Vs. Ashutosh Dubey, reported in 2004 (176) ELT 175; 10. Mohini Bhatia Vs. Commissioner of Customs, Sahar, Mumbai, reported in 1999 (106) ELT 485. Mr. Bharadwaj, the learned Advocate appearing on behalf of the Customs authorities, however, has opposed the aforesaid contention advanced by Mr. Roy and has submitted that the Tribunal below rightly disbelieved the version of the appellant and in the case before us, the receipt produced by the appellant did not reflect the fact that those biscuits mentioned therein were really related to the seven biscuits confiscated by the customs authority. Mr. Bharadwaj further submits that there was no proper explanation of even the one of eight gold biscuits which the appellant claimed to have already transformed into ornament and in the absence of such explanation, the Tribunal below rightly disbelieved the case of the appellant. Mr. Bharadwaj further submitted that even in the receipts produced by the appellant, there was no description of the gold biscuits whereas in the seized one it is specifically mentioned that those are of PAPUA NEW GUINEA origin. Mr. Bharadwaj further submits that Narendra Sharma, the alleged purchaser from M/s. Rara Brothers Pvt. Ltd. also was not produced before the Customs authorities and the notice issued to his address came back with the endorsement ‘not found’. According to Mr. Bharadwaj, on consideration of all the aforesaid factors, the Tribunal below rightly held that the appellant could not explain lawful acquisition of those seven gold biscuits. He further prays for dismissal of the appeal. Therefore, the question that falls for determination in this appeal is whether the Tribunal below committed any substantial error of law in affirming the order of confiscation. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that seven gold biscuits were found in possession of an employee of the appellant before us. After hearing the learned counsel for the parties and after going through the materials on record, we find that there is no dispute that seven gold biscuits were found in possession of an employee of the appellant before us. It is the specific case of the appellant that he purchased the same not by himself but through one Narendra Sharma from M/S Rara Brothers Pvt. Ltd and a receipt showing purchase of eight number of gold biscuits was produced. According to the appellant, in the past, he had already made ornaments from one of such biscuits. It appears that the said Narendra Sharma, who as an agent of the appellant allegedly purchased eight gold biscuits by cash payment, has not been examined or produced before the Customs Authorities to verify the allegation. The summons sent to Narendra Sharma came back with the postal endorsement “not found”. Even, no evidence has been given by the appellant showing the use of the other gold biscuit for manufacture of ornaments. If such fact is not proved, the explanation of the appellant of purchasing eight gold biscuits fails. We further find that the alleged receipt by M/s. Rara Brothers does not indicate that the biscuits were sold to either Narendra Sharma or the appellant. Even the said receipt does not give indication of the description of the gold biscuits to tally with the identity of the gold biscuits which is appearing from the seizer list. It was for the appellant to prove that out of the eight biscuits mentioned in the receipts of M/s. Rara Brothers, the seized ones were the selfsame seven and another had been already converted into ornaments. The appellant could only produce a receipt and nothing else; if Narendra Sharma was examined and he proved that he brought the eight biscuits out of which the seven were seized and got the receipt proved by facing cross-examination of the Revenue and at the same time, the utilization of the eighth one was proved by production of receipts of the goldsmith who allegedly converted the same into ornaments, it could be reasonably argued that the initial burden was discharged. By mere production of one receipt of M/s. Rara Brothers without anything more when the appellant himself did not purchase, the initial burden of proving the defence has not been discharged. By mere production of one receipt of M/s. Rara Brothers without anything more when the appellant himself did not purchase, the initial burden of proving the defence has not been discharged. The Tribunal below, in such circumstances, did not commit any illegality in disbelieving the version of the appellant regarding lawful entry of the biscuits in India and thus, no question of law is involved in this appeal. We now propose to deal with the decision cited by Mr. Roy. In the case of S. K. Chains (Supra), the Tribunal at Mumbai was dealing with a case where gold was recovered from the appellant who took the defence of purchase from a gold dealer firm by account payee cheques. In such a case, it was held that the purchase from gold dealer not having been disputed, it should be presumed that the appellant had discharged his burden that it was not improperly imported. In the case before us, the appellant himself did not purchase but sent another person to purchase by cash but such person was not produced to prove the defence. Thus, the main defence that it was purchased by Narendra Sharma on behalf of the appellant was not proved. Mere production of receipt allegedly given by Narendra Sharma which neither mentioned the name of the appellant nor even of the said Narendra Sharma was no proof of the defence taken and at the same time, the appellant having failed to disclose any material to indicate that the identity of the gold mentioned in the said receipt tallied with seized ones, the learned Tribunal rightly dismissed the appeal. We, thus, find that the facts stated in the reported case conclusively disclosed that the appellant therein purchased the gold by account payee cheque whereas in this case, the appellant miserably failed to prove his defence. In the case of Samir Kumar Roy (Supra), the Kolkata Tribunal was dealing with a case where the appellant claimed that he had purchased the imported gold from one Mansukhlal T. Bavishi of Mumbai and produced Bill No. G/118 dated October 12, 1995. The statement of the seller indicated that he admitted such transaction and the said seller also produced his document for purchase from lawful source by cheque. In such a case, the Tribunal held that the burden of legal acquisition of gold was discharged. The statement of the seller indicated that he admitted such transaction and the said seller also produced his document for purchase from lawful source by cheque. In such a case, the Tribunal held that the burden of legal acquisition of gold was discharged. In the case before us, the appellant even failed to produce Narendra Sharma his alleged agent who purchased the gold by cash and at the same time, the receipt also did not mention the name of either the appellant or Narendra Sharma. Thus, the said decision does not help the appellant in any way. In the case of Rasilaben H. Rathod (Supra), the Tribunal at Ahmedabad was dealing with a case, where the appellant pleaded purchase of gold from lawful authority by production of the bill at the spot and the seller also confirmed such fact by giving evidence. In such a situation, it was held that the burden was discharged. We have already narrated the inability of the appellant to prove the lawful acquisition of the gold. Thus, the said decision has no application to the facts of the present case. In the case of Commissioner of Customs (Prev.), West Bengal (Supra), the Tribunal at Kolkata was dealing with a case where the respondent produced invoice regarding purchase of gold from M/s. Jalan Gold and Silver Pvt. Ltd. According to the Revenue, the respondent first took the plea that he purchased from a different person which on found to be incorrect, the respondent relied upon the invoice. It was established from the record of M/s. Jalan Gold and Silver Pvt. Ltd. that the invoice produced by the respondent was issued on December 24, 2007 and thereafter, two other invoices were issued to some others on December 26, 2007 whereas the respondent was arrested on December 25, 2007 and was in custody till December 26, 2007 and thus, the invoice dated December 24, 2007 could not be held to after-thought as alleged by the Customs. We fail to appreciate how the said decision can be of any help to Mr. Roy’s client when he could not even prove purchase from authorised shop by production of Narendra Sharma who allegedly purchased the same. We fail to appreciate how the said decision can be of any help to Mr. Roy’s client when he could not even prove purchase from authorised shop by production of Narendra Sharma who allegedly purchased the same. In the case of Commissioner of Customs vs. Golak Chandra Kamilla (Supra), the Tribunal at Kolkata was dealing with a case where the respondent took the defence that he purchased the gold from M/s. Guinea Palace, Midnapur. Subsequently, the Department made an investigation and took the statement of the shop owner who used to purchase gold from M/s. Jalan Co. But the Department failed to verify from M/s. Jalan Co. as regards the seized articles. In such a case, it was held that the burden of proving lawful possession was discharged. In the case before us, the initial defence that the seized gold was purchased through Narendra Sharma by cash has not been established by mere production of a receipt of M/s. Rara when the receipt did not disclose the name of Narendra or the appellant nor was any description of gold indicated in the said receipt not even of the recent origin. We, thus, find that the said decision does not help the appellant in any way. The case of Commissioner of Customs (Prev.) vs. Puni Dhapa Kokeswara Rao (Supra), was one where the Tribunal at Kolkata was dealing with a case where the question was whether the statement made before a Customs Officer can be said to be a confessional statement. Such question was answered in the affirmative provided the same was voluntary. In the case before us, the Tribunal below on consideration of the entire facts and materials on record came to the conclusion that the initial burden that the appellant obtained the gold from lawful source was not established. Such finding is not solely based on the confessional statement of the agent of the appellant but on overall consideration of the materials on record. Therefore, the finding recorded by the Tribunal is a finding of fact based on evidence and in such circumstances, we do not find any reason to interfere with such finding fact which is neither one based on misreading of record not one based on no evidence so as to brand the same as perverse. Therefore, the finding recorded by the Tribunal is a finding of fact based on evidence and in such circumstances, we do not find any reason to interfere with such finding fact which is neither one based on misreading of record not one based on no evidence so as to brand the same as perverse. In the case of Kadarbhai J. Vora (Supra), the Tribunal at Mumbai was dealing with a case where detention of the appellant under COFEPOSA weighed with the authority more than the evidence on record. In such a case, the Tribunal set aside the order on the ground of inaction of the Revenue to verify the defence. In the case before us, the appellant as indicated earlier, failed to prove purchase by production of his agent. Thus, factually the said case is distinguishable. In the case of Rupchand Jain (Supra), a Division Bench of this Court was considering a case where the appellant produced various documents in support of his defence of legal possession of diamonds but in spite of such fact the tribunal below did not at all consider or those evidence. In such circumstances, it was held that the initial burden was discharged. We have already pointed out that by mere production of a receipt not bearing the name of the appellant cannot discharge the initial burden when the appellant did not obtain the receipt from the alleged seller but obtained through his agent by payment of cash but the said agent is not traceable. In the case of Commissioner of Customs, Jaipur (Supra), the Tribunal at Delhi was considering a case where a confessional statement under Section 108 of the Act was retracted on the very next day and the burden of proof was discharged by the respondent by establishing unbroken sequence of lawful transaction leading to his lawful possession. In such a case, it was held that the order of confiscation could not be sustained. In the case before us, the appellant even could not produce evidence of utilization of the eighth gold biscuit by conversion to ornament by production of any evidence not to speak of actual payment by appellant to Narendra Sharma and the tender of such money to M/s. Rara. Thus, the said decision has no application to the facts of the present case. Thus, the said decision has no application to the facts of the present case. The case of Mohini Bhatia (Supra), is one of the Tribunal at Mumbai dealing with a case where gold bar weighing 650 tolas were brought in India by mother and the daughter duo and were not declared at the airport Customs on arrival from Singapur. An order of confiscation was passed. On appeal, the Tribunal converted such order to redemption fine of total Rs.8.50 lakh. Prayer for re-export was, however, refused. By relying upon the said decision, Mr. Roy as a last resort tried to convince us that it is a case of at the most redemption fine. Having regard to the evidence on record, we are convinced that the gold seized in this case was illegally imported in India and we do not find any reason to alter or modify the order impugned. We find that in this case the learned Tribunal below on the basis of the materials on record rightly affirmed the order of confiscation and penalty and we do not find any reason to interfere with a correct finding of fact recorded by the Tribunal. This appeal is, thus, devoid of any substance and is dismissed. In the facts and circumstances, there will be, however, no order as to costs.