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TMI Blog2006 (11) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that out of the said bullions, 3 bullions were of foreign origin and the purity of silver content is 99.9%. The officers recorded the statement of Shri D.K. Agarwal and issued show cause notices to both the persons proposing confiscation of the seized silver bullions and imposition of penalty under the Customs Act, 1962. 3. During the pendency of the proceedings before the lower authorities, the main noticee Shri D.K. Agarwal expired in a road accident and the proceedings were continued by his wife Smt. Anju Devi. The adjudicating authority after considering the contention and arguments raised by the current appellant, held that the silver bullions are liable for absolute confiscation. Hence this appeal. 4. The learned Advocate submits that he is appearing only for the appellant Smt. Anju Devi who is the wife of Shri D.K. Agarwal who claimed the ownership of silver. It is his submission that out of 37 pieces of silver bullions seized; only 3 bullions were of the weight of more than 30 kgs each. It is his submission that the panchnama which was recorded on the spot, indicated that only 2 bullions were having some kind of markings which in itself would indicate that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his submission that reliance placed by the appellant on the CBEC Circular is not totally correct as in this case, the quantity of seized silver is more than 100 kgs and three pieces were more than 30 kgs. It is his further submission that the appellant even today has not produced any document which would indicate the licit ownership of the seized silver bullion. 6. Considered the submissions made at length by both sides and perused the records. All arguments raised by both the sides are being decided in the following manner. 6.1 As regards the primary objection raised by the learned DR regarding the maintainability of the appeal by the current appellant Smt. Anju Devi, I find that the current appellant had filed an affidavit on 13-10-04 before the lower authorities that she is wife of late Shri D.K. Agarwal. It is also noticed from the record that the Tribunal vide its order dated 1-12-04, dismissed the application for condonation of delay filed by Smt. Anju Devi. Consequently, the appeal was also rejected. As against this order, the current appellant approached the Hon ble High Court of Judicature at Allahabad and in C.W.P. No. 1318/05 and in the said writ petition, the cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority that the markings on the silver bullion as recorded on the seized silver bullion was not the same as recorded by the adjudicating in his adjudication order. It would be incorrect for the adjudicating authority to introduce or interpolate the markings on the silver bullion in his adjudication order, details of which were not indicated in the panchnama. By introducing additional markings in the order, the adjudicating authority has tried to justify that the seized bullion as being of foreign origin and hence smuggled. It is noticed that the markings of word Degussa were in capital letter on the silver bullion (as recorded by panchnama) while the London Bullion mark Association has recognition for Degussa AG . 6.3 In order to trade in LBMA, every manufacturer has to adhere to the The Good Delivery rules for Gold and Silver Bars as adopted by LBMA. Rule 9 of the said Rules, for trading in silver bars, the following requirement is a must : 9. Specification for a Good Delivery Silver Bar The physical settlement of a loco London silver trade is a bar conforming to the following specifications : Weight : Minimum silver content 750 ounces (approxi. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GUSSA , the marking sought to be interpreted by the authorities as being of a foreign company. On the face of such evidence, the Revenue has not been able to establish clearly that the said silver bullions which had inscription DEGUSSA was in fact of a foreign company. The proof brought on record by the learned Advocate before me and also before the lower authorities, indicates that the current appellant s late husband had floated a firm by name and style of M/s. Degussa and is not contradicted by Revenue. It is the contention of the Revenue that the inscription DEGUSSA would indicate that the silver bars were manufactured by Degussa AG but nothing is on record to show that the International company Degussa AG used the inscription DEGUSSA . 6.5 Considering all the evidences, it is noticed that the Revenue has not discharged the burden that the seized silver bars were in fact of foreign origin. It is also noted that out of 37 silver bars seized, only 3 silvers bars were having some inscription and out of 3, 2 were found with marking DEGUSSA-999 while other silver bullions was found with marking of only weight. In the absence of any direct evidence to link these 3 bullions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in possession of Indian Silver should not face harassment. To that extent, the Board has laid down a policy that Section 123 need not be enforced by Executive officer in certain cases. A perusal of the said order/circular shows that this exception was made in the case where either bullion was not in the form of 30 kgs ingots and also where silver bullion is found to bear foreign markings, the question of the seizure may be considered even when the quantity is less than hundred kilograms by an officer not lower in rank than that of an Assistant Collector of Customs. In the present instance, I find mahazar under which the seizure was effected clearly shows that seizure was effected by an officer lower than the rank of Asstt. Collector even though the ingot bore no foreign markings, as per the mahazar itself and the quantity of the said silver was less than 100 kgs. To that extent, I find that firstly the seizure itself is in violation of the Executive s instructions noted above issued by the Board and secondly, in view of the quantity being less than 100 kgs and there being no foreign markings on the ingot, it would not be just and proper to shift the burden of proof under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were carrying foreign marking they sought to make a case out of purity of silver being more than 999% as indicator that these silver bullions were of foreign origin, which is against settled law as reproduced in above paragraph. It is also noted that the revenue has not brought on record any single evidence regarding foreign origin of the silver bars. Compliance of provisions of section 123 have not been completely satisfied by the Revenue and the onus has not shifted to appellants to prove that the goods were not of smuggled nature. 6.10 The learned DR s reliance upon the case of Bula Ghosh v Commissioner 2003 (157) E.L.T. 69 would not be of any help due to the fact that in the present case, the Revenue has not discharged its onus of the goods being of foreign origin as indicated in the above paragraphs 6.11 Accordingly, in the facts and circumstances of the case, the impugned order is not sustainable for the reasons set out in the above paragraphs. The impugned order is set aside and the confiscation as ordered is also set aside and the revenue is directed to release the goods to the appellant. The appeal is allowed as indicated above. (Operative part of the Order prono ..... X X X X Extracts X X X X X X X X Extracts X X X X
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