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TMI Blog2002 (3) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ing concealed in a room near the staircase. The appellant, in his statement, recorded at the spot at that time, admitted recovery and further stated that out of 72 pieces, 17 carried mark of foreign origin and that he had purchased the same on 18-3-96 from Rakesh Dalal but whose residential address he did not know. Regarding payment, he stated that the same has not been made by him so far to Rakesh Dalal. He failed to produce any document to prove the purchase of recovered silver pieces at that time. The representative samples from the recovered silver pieces were taken in his presence and in the presence of two independent witnesses and the same were got tested from the office of General Manager, Government of India Mint, Mumbai for ascertaining purity. On test, purity was found to be 991.8, 999.1 and 999.3. The test report of the samples indicated that the silver recovered from the appellants was of foreign origin. Thereafter, summons were issued to the appellant but the same remained unserved for want of his availability at home. He, however, submitted xerox copy of affidavit dated 5-4-1996, wherein he described himself as Managing Director of M/s. Padam Deep Analytical Lab. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gani Hasmani - 1991 (55) E.L.T. 497 (Guj.-DB) and Smt. Mahadevi Lohariwalla v. Union of India - 1988 (38) E.L.T. 585, to further contend that since seizure itself is without jurisdiction, the confiscation of the impugned silver also becomes without jurisdiction. But in our view, this contention of the Counsel is wholly mis-conceived and misplaced keeping in view the facts and circumstances of the case. At the outset it may be mentioned that no such plea was taken in reply to the show cause notice or even otherwise orally before the adjudicating authority i.e., the Commissioner that the Superintendent, Customs was not competent to make seizure of the impugned silver and that no adjudication proceedings in pursuance thereof could be drawn against the appellants. This plea has been taken by the Counsel for the first time and is only an afterthought. 8. Apart from this, even Board s Circular dated 11-6-1990 relied upon by the Counsel and to which the reference has been made by the Tribunal in the case of Anil Kumar Jain and Piyush Kumar Jain. (Supra) is of no help to the appellants. In Para 11 of the judgment of the Tribunal in that case, reference has been made to that circular. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at directions issued by the C.B.E. C. are binding on all subordinate authorities except the appellate authority under the Act, are of no assistance to the appellants as there is no dispute about this proposition. The seizure made by the Superintendent of Customs of the impugned silver was proper and legal as he was competent to do so under the Customs Act. That being so, the confiscation of the same through the impugned order of the Commissioner cannot be struck down and held to be without jurisdiction. The ratio of the law laid down in none of the cases, relied upon by the Counsel, referred to above, is therefore, attracted to the present case. The first contention of the Counsel, therefore, fails. 11. This takes us to the second contention of the Counsel. The learned Counsel has argued that import of the silver ingots at the relevant time was governed by OGL. Therefore, neither the provisions of Section 111(d) for confiscation of the impugned silver nor of Section 112(a) of the Customs Act, for imposition of penalty could be invoked. He has also argued that as per provisions of Section 123 of the Customs Act, the initial burden was on the department to prove that seized silve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit dated 5-4-96. Regarding payment for purchase of silver pieces, he in his statement dated 19-3-96, very fairy conceded that he had not made the same to Rakesh Dalal or to M/s. M.D. Textile Industries. Therefore, it can be safely concluded that he had got prepared the documents i.e. bills/invoices and statements, in his favour showing purchase of seized silver pieces from M/s. M.D. Textile Industries. Otherwise, if all these documents were actually in existence and procured by him on 18-3-96 from that firm, there was no reason for him not to produce the same at the time of search of the house. He, as observed above, did not utter any word regarding purchase of silver pieces from M/s. M.D. Textile Industries at that time, in his statement. At that time, the name of person from whom he purchased the seized silver disclosed by him, was Rakesh Dalal whose whereabouts he even did not know. He, apparently, thereafter, manipulated all these bills/invoices regarding purchase and statement for showing that numbers on the seized pieces, tallied with the silver which was imported by that firm, the details of cutting and melting, with the active connivance of M/s. M.D. Textile Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to raise presumption in its favour with regard to the existence of facts sought to be proved. The Apex Court has also in that case further observed that in the absence of direct evidence of illicit importation of the goods, if there were several circumstances of determinative character which complied with inference arising from the dubious conduct of the party, an inference could be drawn that seized articles were smuggled goods. 14. Similarly, Section 114 of the Evidence Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Apex Court in the case of Shah Guman Mal v. The State of Andhra Pradesh [1983 (13) E.L.T. 1631 (S.C.) = 1980 AIR (SC) 793], while dealing with the question of burden of proof in a case of seizure of gold biscuits not in accordance with the Act and where presumption under Section 123 of the Customs Act was not available to the prosecution, was pleased to observe that presumption under Sections 106 and 114 of the Evidence Act could be avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Melter and the supplier M/s. M.D. Textile Industries by the adjudicating authority has got no adverse bearing on the merits of the case. The appellant, at the time of seizure, neither disclosed the name of melter nor of the supplier in his statement. These names, for the first time, were disclosed by him after 22 days, from the date of the seizure. The documents produced by him from the supplier, as observed above, cannot be attached any credence having been apparently got prepared later on in connivance with the supplier. Therefore, no benefit can be claimed by the appellant on the ground that no enquiry was made from the melter and the alleged supplier of the seized silver. The Commissioner has recorded the detailed reasons for rejecting the theory of purchase of silver pieces by the appellant from supplier M/s. M.D. Textiles Industries. We do not find sufficient grounds to disagree with his findings, in the light of the discussions made above. 17. In view of the discussions made above, the confiscation of the seized silver pieces under Section 111(d) and imposition of penalty under Section 112(b) of the Customs Act, on the appellant had been rightly ordered by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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