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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 ..... -1219 near Gandhi Setu, Patna and recovered 16 pcs. of Silver of different size and shape weighing 80.450 kgs. secreted inside the inner panel of the rear door of the said maruti van. The two occupants of the said van S/Shri Mahesh Prasad, Manager and Ram Chandra Ram, driver of the firm M/s. Brij Bihari Prasad Prabhu Prasad, Sonapatti, Motihari, were apprehended by the Customs Officers. Shri Mahesh Prasad identified himself as the employee of the firm M/s. Brij Bihari Prasad Prabhu 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act. The Show Cause Notice was issued by the Jt. Commissioner of Customs HQs., Patna by its order dated 21-6-2000 confiscated 16 pcs. of silver weighing 80.450 kgs. valued at Rs. 5,22,925/- and also confiscated the Maruti van bearing Registration No. DAC-1219 under Section 115(2) of the Customs Act, 1962. Further, the owner of the van was given an option to redeem the same on payment of fine of Rs. 50,000/-. A fine of Rs. 1.00 Lakh on Brij Behari Prasad Prabhu Prasad and a fine of Rs. 50,000/- each was imposed on Baji Rao Bombaywala and Aqbha Rao Bombaywala. A fine of Rs. 10,000.00 was imposed on Driver Ram Chandra Ram and a fine of Rs. 25,000.00 was imposed upon Shri Mahesh Prasad. No appeal was preferred by Ram Chandra and Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in view of the Board s circular which is binding on the lower authority, the silver having no apparent markings and the pure silver being obtained from the process of melting, the seized silver are not confiscable. Therefore, he submits that the silver be released and the penalty may be set aside. 3. Mr. Madhiam learned D.R. supports the impugned order. He, further, submits that the smuggled nature of the silver is proved by the confessional statement made by Mahesh Prasad who is the employee of M/s. Braj Bihari Prasad Prabhu Prasad and the driver of the van Ram Chandra Ram both have admitted that the silver were smuggled from Nepal and the bars were cheezelled and foreign markings were removed. He submits that no legal document was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Bench in the case of Shambhu Nath v. Commr. of Customs, Lucknow reported in 2001 (132) E.L.T. 195 (Tri. - Del.) and in the Double Bench in the case of Murarilal Agarwal v. Commr. of Central Excise, Trichy reported in 2005 (179) E.L.T. 110 (Tri. - Chennai) has held as under : Confiscation and penalty - Silver bars of foreign origin - Seizure being against policy laid down in C.B.E. C. Circular No. 394/233/88-Cus. In as much as in each of the cases, total weight of silver bars of foreign origin is less than 100 kgs. and weight of each silver bars is less than 30 kgs., confiscation and penalty set aside - Sections 111 and 112 of Customs Act, 1962. In present case, the total weight of the silver under seizure was less than 100 kgs. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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