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TMI Blog2005 (8) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasad, Sonapatti, Motihari. In their confessional as well as interrogatory statements both stated that the owner of the recovered silver was M/s. Brij Bihari Prasad Prabhu Prasad and the owner of Maruti van was Shri Brij Bihari Prasad, partner of the firm. Shri Mahesh Prasad also stated that the recovered silver was of foreign origin smuggled from Nepal and foreign markings were obliterated by chiseling and melting and slabs were embossed with the marks of M/s. Brij Bihari Prasad to give colour of locally melted silver. Shri Mahesh Prasad also produced a printed challan of their firm issued in the name of M/s. Mahabir Abhusan Bhandar duly signed by Prabhu Prasad. Neither Sl. No. of challan was given on challan nor value of silver was mentioned. Shri Ram Chandra Ram Driver of the Maruti van stated that he was driver of Maruti Van No. DAC-1219 and that 16 pcs. of silver weighing 80 kgs. approx. were recovered by the Customs at the rear door of the van near Jarua, Gandhi Setu. He, further, stated that he used to deliver silver to Shri Mahabir Prasad at Patna city 2-3 times in a month with silver of Shri Brij Bihari Prasad Prabhu Prasad. The samples were drawn from all the 16 pcs. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing incriminating was found from the shop premises or the residential premises of the appellant. He submits that the purity of silver can be achieved to 999 or nearer to that. It itself does not speak of smuggled silver. The copies of the statements of S/Sri Baji Rao & Abha Rao were not furnished alongwith the show cause notice. Therefore, they cannot be relied upon. There was no mention of their statement in the show cause notice. Therefore, no reliance can be placed on such a statement. The learned Commissioner traveled beyond the parameter of the show cause notice. The silver bars had no marks of foreign origin. The marks of Braj Behari Prasad Prabhu Prasad on some of the pieces will prove that the silver bars are of Indian origin. He submits that old and used silver ornaments, articles lumps purchased by the firm were melted and refined by the refiners. The allegation that there had been scratches and tampering of the marking of the silver has no basis. Therefore, passed on assumptions and presumptions. There is no evidence of proof that the goods are of foreign origin. The panchnama and the inventory were subsequently tampered and changed. Therefore, the seizure being vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired it legally. Therefore, he submits that the appeals may be dismissed. 4. From perusal of the show cause notice and the various statements recorded by the Customs Authority as well as the seizure memo submitted by the Customs Authority, it is clear that no foreign markings were available on the 16 Silver pcs. recovered from the Maruti van. It is evident from the seizure memo that the marks bearing on the pcs. were of the owner as indicated in the different articles of the seizure memo. The Govt. of India, Ministry of Finance, Department of Revenue (Anti-smuggling unit) have issued a Circular No. 394/233/88-Cus. (AS), dated 11-6-90 it is directed as follows : "In order to prevent the possibility of undue harassment to law abiding persons possessing small quantities of silver bullion of Indian origin, it has been decided that normally the provisions of Section 123 of the Customs Act, 1962 should not be invoked against persons who are found to be in possessions of silver bullion of less than 100 kgs. However, if the silver bullion is found to be in the form of bars weighing 30 kgs. (appropriately) each which are being smuggled into the country and also where silver bull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal statements of the appellants were recorded after some delay while they were in custody of Customs Officers and subsequently they were sent to judicial custody. The statement cannot be taken as voluntarily as held in the case of Union of India v. Abdulkadar Abdulgani Hasmani Reported in 1991 (55) E.L.T. 497 (Guj.), Deben Chandra Karmakar v. Collector of Customs (Prev.), Calcutta reported in 1999 (109) E.L.T. 241 (Tribunal), A.N. Bhat v. Collector of Customs, reported in 1991 (55) E.L.T. 580 (Tribunal). In present case, the statement of Ramchandra Ram and Mahesh Prasad were recorded while they were in custody. The statement was retracted immediately after release from the judicial custody. They alleged that the statement were obtained under threats. Therefore, no penalty can be imposed neither the goods can be confiscated. The lower authority totally relied on the statement of Mahesh Prasad regarding the origin of the silver. Shri Mahesh Prasad in his statement has stated as under : He also stated that as per his knowledge the silver was being smuggled from Birganj (Nepal) and was being melted from blocks by Sri Brij Bihari Prasad who got imprinted his own markings over blocks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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