2001 (6) TMI 125 - AT - Customs

Summary

Issues Involved:
1. Whether the seized silver bars were of foreign origin.
2. Whether the appellants were involved in the smuggling and abetting the smuggling of silver.
3. Whether the burden of proof was discharged by the department.
4. The relevance of the acquittal by the Economic Offence Court in the present case.

Detailed Analysis:

1. Whether the seized silver bars were of foreign origin:
The Tribunal examined whether the seized silver bars had any foreign markings or indications of foreign origin. The statements of witnesses and the mahazar drawn by the department did not disclose any foreign markings or country of origin for the silver bars, except for some numbers found on the seized silver. The government witnesses who seized the silver bars testified before the Special Judge, Economic Offences, that the numbers alone did not indicate foreign origin. Additionally, there was no document or assayer's report confirming that the silver bars were of foreign origin. The Special Judge had also found that silver with a purity of 999 and weights of 32 to 38 kg is manufactured in Hyderabad and exported. The Tribunal concluded that there was no evidence to prove that the seized silver bars were of foreign origin.

2. Whether the appellants were involved in the smuggling and abetting the smuggling of silver:
The appellants, partners of Swastik Refinery, were accused of receiving 23 silver bars of foreign origin for melting. Kirit Parekh, the managing partner, stated that the contraband silver bars were received but he refused to melt them and requested their removal. Pankaj B. Parekh, a sleeping partner, corroborated this, stating that he was not involved in the day-to-day business and was present incidentally when the silver bars were delivered and subsequently removed. The Tribunal found that both appellants had disowned the silver sent by Tippu's wife and had taken steps to return it. Tippu's statement did not provide any evidence of foreign origin or purchase from a foreign source. The Tribunal concluded that there was no evidence to show the appellants' complicity in smuggling or abetting the smuggling of silver.

3. Whether the burden of proof was discharged by the department:
The learned Counsel for the appellants argued that the department had not discharged the burden of proof to show that the seized silver bars were illicitly brought into the country and bore foreign markings. The Tribunal noted that the department's evidence, including the statements and the mahazar, did not establish the foreign origin of the silver bars. The assayer's report did not indicate foreign markings, and there was no independent evidence to support the department's claim. The Tribunal concurred with the Special Judge's finding that the department had not discharged its burden of proof.

4. The relevance of the acquittal by the Economic Offence Court in the present case:
The learned Counsel for the appellants relied on the acquittal by the Economic Offence Court, which found that the department had not proved that the seized silver bars were of foreign origin and illicitly brought into the country. The Tribunal noted that in similar cases, it had accepted the judgments of the Special Judge, Economic Offences, and acquitted individuals based on the same evidence. The Tribunal cited previous judgments, including those of the Madras High Court, where the findings of the trial court were given credence. The Tribunal found that the acquittal order had a bearing on the present case and accepted the findings of the Special Judge for recording an independent order.

Conclusion:
The Tribunal concluded that there was no evidence to show that the seized silver bars were of foreign origin or that the appellants were involved in smuggling or abetting the smuggling of silver. The department had not discharged its burden of proof, and the acquittal by the Economic Offence Court was relevant and accepted. Consequently, the imposition of penalties on the appellants was set aside, and their appeals were allowed with consequential relief as per law.