2020 (5) TMI 9 - AT - Customs

Smuggling - Silver Granules - foreign origin goods - Department was of the view that the silver being foreign origin and that the appellant not been able to establish the duty paid on the said silver or legal import, is smuggled in nature - Confiscation - penalties - Circular of the Board dated 11.06.1990 - HELD THAT - From the circular, it is seen that the Govt. has made clear that the provisions of section 123 of Customs Act, 1962 should not be invoked, when persons are found possession of silver bullion less than 100 kgs. Further that when silver bullion is in the form of bars of 30 kgs. each and also silver bullion which bear foreign markings even though less than 100 kgs. can be subject to seizure for which proceedings can be initiated. In the present case, the silver is not in the nature of bars or coins. It is in the form silver granules. As per the circular, when silver bullion is found in possession with foreign markings the same can be subject to seizure, if it is less than 100 kgs. In the present case, the quantity of silver bullion is 60 kgs. Then the question arises, whether silver granules would fall within the definition of silver bullion - The meaning of bullion thus does not take away platinum, gold or silver in the form of grains/granules. Thus, granules also fall within the definition of bullion. This would lead to the consequence that if the silver granules has foreign markings even though less than 100 kgs. would not be covered by the above Board circular. Whether silver granules in the present case has foreign markings? - HELD THAT - The marking cannot be endorsed on silver granules as in case of silver coins or silver bars. The only practical way to endorse a marking on silver in the form of granules is to mention the markings on the packing /boxes which holds the silver granules - In the present case, the silver granules were found in carton boxes on which there was specific mention of the name of foreign manufacturer, lot nos., the date of manufacture etc. The scanned copy of the markings on the boxes has been placed as part of the record, which is reproduced under and would help for better appreciation - Thus, it can be seen that the markings on the boxes clearly indicated the silver granules was of foreign origin. Then the burden shifts on to the appellant to show how the markings do not relate to the silver contained inside the boxes. The appellant also relies upon ledger extracts/ accounts to tentend that silver was purchased by him. Shri Gaurav Agarwal has deposed that he had purchased silver granules vide eight transactions from M/s. S.B. Ornaments Pvt. Ltd., Agra, M/s. Nishant Silver Handicraft, Mathura and M/s. Prasanth Silver Handicraft, Mathura. Appellant has produced some invoices and accounts to support this - The statement of Shri Gaurav Agarwal is totally silent on this aspect. At the cost of repetition it has to be mentioned that the carton boxes which contained the silver granules correctly mentioned the quantity in each box to be 10kgs, the name of manufacturer, the lot no. year of manufacture, purity etc. - Further, it is a question to be answered by the appellant as to whether the silver granules after being processed out of a bar by the appellant retain such high purity. The appellant has not been able to establish that the silver was legally imported and suffered Customs duty - the confiscation of goods and penalties imposed are legal and proper - Appeal dismissed - decided against appellant.

Issues Involved:
1. Legality of the seizure of 60 kgs. of silver granules.
2. Applicability of Section 123 of the Customs Act, 1962.
3. Validity of the confiscation and penalty imposed.
4. Relevance of the Board Circular dated 11.06.1990.

Issue-wise Detailed Analysis:

1. Legality of the Seizure of 60 kgs. of Silver Granules:
The Customs Preventive Unit intercepted an auto carrying parcels containing 101.36 kgs. of silver, including 60 kgs. of silver granules intended for Mahendran. The appellant, Gaurav Agarwal, claimed ownership, stating the silver was sent for making leg chains. Despite providing documents and statements, the department suspected the silver was smuggled due to its foreign origin markings and lack of duty payment proof. The seizure was based on the suspicion that the silver granules were of foreign origin, marked "Made in Korea" with lot numbers, and no supporting import documents were provided.

2. Applicability of Section 123 of the Customs Act, 1962:
The appellant argued that Section 123, which shifts the burden of proving the legality of the goods onto the possessor, should not apply as per the Board Circular dated 11.06.1990. This circular states that Section 123 should not be invoked for silver bullion less than 100 kgs. unless it is in the form of bars weighing 30 kgs. each or bears foreign markings. The appellant contended that the seized silver was in the form of granules, not bars, and did not bear foreign markings, thus Section 123 should not apply.

3. Validity of the Confiscation and Penalty Imposed:
The original authority and the Commissioner (Appeals) upheld the confiscation and imposed a penalty of ?5 lakhs under Section 112(a) of the Customs Act, 1962. They concluded that the markings on the cartons indicated foreign origin, and the appellant failed to prove legal import or duty payment. The Tribunal noted that the appellant's claim of purchasing the cartons from a roadside shop was implausible, given the precise markings and quantities matching the contents. The Tribunal found that the appellant did not provide sufficient evidence to rebut the presumption of smuggling under Section 123.

4. Relevance of the Board Circular dated 11.06.1990:
The appellant relied on the Board Circular to argue that the seizure was against the guidelines, as the quantity was less than 100 kgs. and not in the form of 30 kgs. bars with foreign markings. The Tribunal, however, interpreted the circular to include silver granules within the definition of bullion, as the markings on the cartons indicated foreign origin. The Tribunal held that the circular did not apply because the silver granules were found in cartons with foreign markings, shifting the burden of proof to the appellant, which he failed to discharge.

Conclusion:
The Tribunal dismissed the appeal, upholding the confiscation and penalty. It concluded that the appellant did not establish the silver's legal importation and duty payment, and the foreign markings on the cartons justified the seizure under Section 123 of the Customs Act, 1962. The Board Circular did not protect the appellant, as the silver granules fell within its scope due to the foreign markings on the packaging.

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