9911796707
TMI Blog1997 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... silver bars in dispute were recovered, among other items. Proceedings were drawn up in respect of other items. The appellants have already agitated the issue before the Tribunal and orders have since been passed. In the instant case, the appeal concerns with the confiscation of 65 bars of Silver recovered on 8-8-1965 and further 20 bars of silver recovered from the residential premises on 3-8-1965. 3. Shri Harbans Singh, the ld. Advocate appearing for the appellants, submits that, in all, this case concerns with confiscation of 85 slabs of silver weighing 2910.150 kgs. He submitted that the case has a chequered history in as much as digging operations in the premises of the appellant continued for about 2 months and gold, gold coins, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence has been brought on record to show that the Department had discharged its onus. He submitted that some of the silver slabs, no doubt, bore foreign markings; but foreign markings alone did not prove that the goods were smuggled. In support of his contention, the ld. Counsel submitted that the Hon'ble Calcutta High Court in the case reported in AIR 1952 (Cal.) p. 789, held that foreign markings alone is not sufficient proof for proving that the goods were smuggled. The ld. Counsel submitted that similar view was expressed by the Hon'ble A.P. High Court in the case of M/s. Innovation Secunderabad & Another v. Central Board of Customs and Excise, observing that merely because the petitioner is unable to prove his case with respect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export was without payment of duty or in violation of restrictions or prohibition relating to the entry into or out of India." The ld. Counsel submitted that carrying foreign markings alone does not prove that the silver in question was smuggled unless the Department has adduced any evidence to prove that duty was not paid on the silver slabs or the silver slabs were imported against any restrictions. 5. The ld. Counsel also cited and relied upon the decision of this Tribunal in the case of Hindustan Bearing Corporation v. Collector Customs, reported in 1990 (50) E.L.T. 91. In this case, the Tribunal held that "the mere fact that the goods were of foreign in origin is not sufficient to hold that they are smuggled goods. The circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstantial evidence must be compatible to the guilt of the accused and totally in-compatible with the innocence of the person. In support of his contention, the ld. Counsel cited and relied upon the decision in the case of Bachcha Prasad v. Collector of Customs, reported in 1988 (37) E.L.T. 269. The ld. Counsel also cited and relied upon the decision of the Tribunal in the case of C.C.E., Allahabad v. Anoop Kumar Agarwal, reported in 1997 (91) E.L.T. 63, wherein the Tribunal held that "the burden of proof about the smuggled nature of the goods where the goods are not notified under Section 123 of the Customs Act, is on the Department to prove the smuggled nature of the goods." 7. Summing up his arguments, the ld. Counsel submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the Appellants have not proved conclusively that these silver bars were actually procured by them before the enactment of Customs Act, 1962 and, therefore, the lower authorities have rightly confiscated the goods absolutely. He reiterated the findings of the ld. Collector in the impugned order. 9. Heard the submissions of both sides. We find that the admitted position is that 85 silver bars/slabs bore foreign markings. The question, therefore, arose whether foreign markings alone is sufficient proof to show that the goods were smuggled into the country. We have perused the case law cited and relied upon by the appellants. We find that there are two contentions viz. the first was that these 85 silver bars/slabs were obtained at l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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