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TMI Blog2020 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity of silver bullion is 60 kgs. Then the question arises, whether silver granules would fall within the definition of silver bullion - The meaning of bullion thus does not take away platinum, gold or silver in the form of grains/granules. Thus, granules also fall within the definition of bullion. This would lead to the consequence that if the silver granules has foreign markings even though less than 100 kgs. would not be covered by the above Board circular. Whether silver granules in the present case has foreign markings? - HELD THAT:- The marking cannot be endorsed on silver granules as in case of silver coins or silver bars. The only practical way to endorse a marking on silver in the form of granules is to mention the markings on the packing /boxes which holds the silver granules - In the present case, the silver granules were found in carton boxes on which there was specific mention of the name of foreign manufacturer, lot nos., the date of manufacture etc. The scanned copy of the markings on the boxes has been placed as part of the record, which is reproduced under and would help for better appreciation - Thus, it can be seen that the markings on the boxes clearly indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 101.36 kgs. of silver granules/bars/leg chains etc., along with airway bills of M/s. Green Dart Courier, Chennai. Out of 101.36 kgs of silver found in the parcels, 60 kgs. was in the nature of silver granules and intended to be delivered to Shri M. Mahendran. The present dispute is confined to the said 60 kgs. of silver granules only relating to airway bill no.323030/26.06.2013 on which sender s name is shown as PJ and recipient address as Mahendran. 1.1 The parcel consigned to Mahendran had three boxes. These three boxes had two carton boxes in each box. Hence there were totally six carton boxes and these carton boxes which contained silver granules had markings with serial numbers as Made in Korea ₹ 999.9`,along with lot numbers .Each carton box was found to contain 10 kg of silver granules and thus there was total quantity of 60 kg of silver granules. The description is as under: Carton Box No. Particulars of the materials available in the parcel Weight (in Kgs.) Sender Receiver (1) (2) (3) (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the original authority confirmed the confiscation and imposed penalty of ₹ 5 lakhs on the appellant under section 112(a) of the Customs Act, 1962. In appeal, Commissioner (Appeals) upheld the same. Hence this appeal. 2.0 On behalf of the appellant, the learned counsel Shri B. Satish Sundar appeared and argued the matter. He explained the facts of the case and furnished chart giving the dates and narration of incidents as under: Date Event 27.6.2013 Based on intelligence, Customs Preventive Unit intercepts one load auto bearing registration No.TN30M0013 near Salem Junction and recover 5 parcels packed in plastic sacks. The recipient s name in the said parcels is mentioned as Venkatesh SLM 9344664811 . On the same date, Venkatesh of Salem is identified and asked to appear before the investigation authorities. Venkatesh appears along with four other persons to whom the parcels were to be delivered namely Inder Chand, Srinivasan, Hari Ganesan and Mahendran and statements were recorded from each other. Examination of the parcels reveal that they contain 101.361 Kgs. of silver granules / bars/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he is in the business of silver bullion and leg chains for last ten years. He further submits that he had purchased 112.430 kgs. of silver bullion by 8 transactions from SB Ornaments Pvt. Ltd. Agra from May 2012 to March 2013 and 13.199 Kgs. from M/s.Nishant Handicrafts, Mathura and 4.926 Kgs. from M/s.Prashant Silver Handicrafts, Mathura from December 2012 to January 2013. That out of the stock of silver bullion he has sent the 60 kgs of remnant particles of silver bullion in 6 polythene bags each of 1- Kgs. through his employee Rakesh on 24.6.2013 from Mathura to Chennai by train which was handed over to Green Dart courier, Chennai for sending it to Mahendran. 23.9.2013 and 15.10.2013 Letters of SB Ornaments confirming sale of silver bullion to the appellant 5.11.2013 Confirmation letter of Prashant Silver Handicrafts 5.11.2013 Further, confirmation letter of Nishant Silver Handicrafts to the appellant 20.1.2014 Statement of Gaurav Agarawal, appellant before the Deputy Commissioner of Central Excise, Aligarh, wherein the detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumptive and on mere assumption and presumptions. The authorities below have not given any credence to the accounts books like ledgers, vouchers, sales bills besides confirmation from the sellers produced by the appellant and also his initial statement to the effect that the silver seized were stock in trade which was sent from Mathura to Salem for making silver leg chains. In light of the extensive defence and materials produced by the appellant to show that the silver in question was part of stock in trade which was sent for job work, the burden if any under section 123 stands discharged, and cannot be invoked. Therefore, the findings of the original authority as confirmed by the appellate authority that original packings had foreign markings, silver granules and prohibited goods and no evidence has been produced to show it is not smuggled, differing stands and books of accounts which cannot be correlated require to be rejected at the hands of this Hon ble Tribunal for the reason that burden under section 123 is rebutable and enough and more materials have been placed by the appellant to show that the silver granules under seizure were part of stock in trade which has been acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign markings. The markings seen on the packings/cartons has been explained by the appellant Shri Gaurav Agarwal. He had purchased the said cartons/packings from street in Chennai and used the same for packing and sending the silver for job work. The silver granules was purchased by the appellant from various silver dealers in Mathura. The bills showing the purchase from the said silver dealers have also been produced. The books of accounts of the appellants show the purchases, which was also shown before the authorities. None of the documents was given any weightage by the department. 2.2 The learned counsel relied upon various judgments as discussed below: (1) N.S. Allaudeen Vs Commissioner of Customs, Trichy reported in 2001 (13a) E.L.T.198 (Tri.-Chennai). The learned counsel submitted that the fact of the case is that the silver seized was in the nature of bars and though had foreign markings weighing less than 30 kgs. The Tribunal had applied the Board s Circular and held that confiscation and seizure cannot sustain. (2) K.N. Easwaran Vs Commissioner of Customs, Trichy reported in 2001 (1 32) E.L.T.1 92 (Tri.-Chennai) This case was relied upon by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot nos. as well as the purity is mentioned on the packing boxes. Further, the boxes were factory sealed. The appellant states that he has purchased the boxes from roadside at Chennai and had handed over the boxes for packing to M/s. Green Dart Courier. This is false and unbelievable. Further, Shri Raju, Proprietor of M/s. Green Dart Courier stated that the sender is Shri. Muralidhran , M/s. BBT and M/s. PJ and the goods in parcels were declared as automobile spare parts. The sender or the consignee is not the appellant herein. The parcel was addressed to Shri Venkatesh and therefore the claim of the appellant that he send the silver for job work cannot be true. The statement of Shri Raju read along with the fact that the cartons were bearing foreign markings along with seal and details of the manufacture would establish that the silver is of foreign origin. Apart from this, the assayer has certified that it has 99.8/99.7 % purity. The purity noted on the packings is 99.9%. The minor difference of 0.1-0.2% per carrot is of no consequence. The quantity mentioned on the carton boxes is 10 Kgs., and the very same quantity of silver was found in polythene bags, kept inside these carton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantities of silver bullion of Indian origin, it has been decided that normally the provisions of the section 123 of Custom s Act, 1962 should not be invoked against persons, who are found to be in possession of silver bullion of less than hundred kilograms. However, if the silver bullion is found to be the form of bars weighting 30 kilograms (approx.), which are being smuggled into the country and also where silver bullion is found to bear foreign markings, the question of seizure may be considered even when the quantity is less than hundred kilograms by an officer not lower in rank that than o[ an Assistant Collector of Customs. Also keeping in view that now there is no incentive for the illegal export of silver bullion and coins, Notification No. 29 (customs), dated 8th June, 1990 has been issued removing silver bullion and coins from the purview of Chapter IV- B or the Custom s Act, 1962. Detailed instructions are being issued separately. From the above circular, it is seen that the Govt. has made clear that the provisions of section 123 of Customs Act, 1962 should not be invoked, when persons are found possession of silver bullion less than 100 kgs. Further that when sil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled it. This explanation seems to be unbelievable and acceptable. The boxes contained the exact quantity of silver granules mentioned on them. How is it possible for the appellant to purchase 6 carton boxes exactly mentioning 10 kgs of silver granules from road side shop in Sowcarpet. Further, the boxes also show the date of manufacture, purity as also lots nos. The details given by department in another case(silver granules imported by Sh. Shiv Sahni) establishes that the manufacturer mentioned on the carton boxes is a manufacturer/supplier of silver granules. These facts would sufficiently prove that the case set up by the appellant that the carton boxes were purchased from roadside to be false and unacceptable. From the discussions made above, I am of the view that the foreign markings on the carton boxes/packings relate to the silver granules contained in them and, therefore, the circular dated 11.06.1990 cannot apply. 6.2 The appellant also relies upon ledger extracts/ accounts to tentend that silver was purchased by him. Shri Gaurav Agarwal has deposed that he had purchased silver granules vide eight transactions from M/s. S.B. Ornaments Pvt. Ltd., Agra, M/s. Nishant Silv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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