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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 ..... Hariganesan and Mahendran. These 5 parcels were opened in the presence of independent witnesses and found to contain 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 Rs. 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) (5) III One carton box contains silver granules (Lot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring 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/ leg chains etc. of which 60 kgs. of silver granules are meant for Mahendran. 27.6.2013 Statement of Mahendran is recorded. He states that he is in the business of making silver leg chains and used to receive silver bars / granules from Gaurav of Mathura and used to convert the same into silver leg chains and send them back for which he would receive Rs. 400/- per kg. as making charges. He also states that the 60 Kgs. of silver granules were purchased by Gaurav from Chennai and send to him. 28.6.2013 Goods were seized and deposited in customs warehouse, Trichy. 5.7.2013 Statement was recorded from Venkatesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire books of accounts including cash book, sales tax return, income tax statement and ledger accounts for purchase and sale / trade in silver. 13.2.2014 Show cause notice is issued by the department proposing confiscation and penalty. 1.4.2014 Reply to show cause notice filed contesting the proposal for confiscation and penalty./ 9.9.2015 O-I-O No.45/2015 (JC) passed by the original authority absolutely confiscating the silver granules and imposing penalty of Rs. 5 lakhs on the ground that the burden under sec.23 had not been discharged and that the packings of the polythene bags indicate that the silver might have been of Korea origin and smuggled. 6.11.2015 Appellant deposits 7.5% of the penalty amount and filed appeal to the Commissioner of Customs (Appeals), Trichy 9.12.2015 Appeal filed before the appellate authority 23.6.2016 The appellate authority namely the Commissioner of Customs (Appeals), Trichy rejects the appeal. 29.9.2016 Appellant deposits balance 2.5% of the penalty amount and prefers appeal to this Hon'ble Tribunal. 2.1 Contentions :- 1. The consistent stand of the appellant is that the silver under seizure are not of foreign origin, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been considered by the CBEC vide Circular dated 11.6.1990 in which if seizure is of silver bullion, meets the above criteria, then section 123 should not be invoked. Admittedly, in the present case, the seized quantity is only 60 kgs. and the silver bars do not have any foreign markings and are not of 30 kgs bars and therefore the burden cannot be cast on the appellant in terms of section 123. The very same issue has come up for consideration before this Hon'ble Tribunal in a number of cases of which the following is relied:- a. 2001 (131) ELT 198 (Tri. Chennai) b. 2001 (132) ELT 192 (Tri. Chennai) affirmed in 2009 (238) ELT A 166 (SC) c. 2005 (191) ELT 1103 (Tri. Kol.) d. 2005 (179) ELT 110 (Tri. Chennai) e. 2009 (239) ELT 427 (Tri. All.) f. 2009 (243) ELT 74 (Tri. Chennai) g. 2001 (133) ELT 668 (Tri. Kol.) affirmed in 2014 (312) ELT 17 (SC) h. 2017 (354) ELT 666 (Tri. Chennai) 5. Mere lustre and markings on the packings cannot be a criteria to hold that the seized silver is of foreign origin and smuggled. The appellant relies on judgment of the Hon'ble Tribunal in 2015 (324) ELT 162) (Tri.). Thus, in light of the afforested facts and the contentions raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sad Vs Commissioner of Customs, Patna reported in 2009 (191) E.L.T.1103 (Tri. -Kolkata). The learned counsel relied upon the above decision to argue that the circular was given effect to when the seizure of the silver was less than 100 kgs. without foreign markings. (4) Murarilal Agarwal Vs Commissioner of Central Excise, Trichy reported in 2005 (179) E.L.T.110 (Tri. -Chennai). The learned counsel relied upon the decision of the Larger Bench of the Tribunal wherein the applicability of the Board's circular was also discussed. The said order was affirmed by the Hon'ble High Court of Allahabad as reported in 2009 (239) E.L.T. 427 (All.). (5) Naqsood Alam Vs Commissioner of Customs, Lucknow reported in 201 5 (324} E.L.T.162 (Tri.-Del.). The learned counsel stressed that even though the cartons /packing has foreign markings this cannot be the criteria to decide whether the goods inside the cartons are of foreign origin. 3.0 The learned Authorized Representative for the Revenue Ms. T. Ushadevi, DC (AR) appeared and argued on behalf of the department. She first referred to the circular relied upon by the learned counsel for the appellant. It is submitted by her that in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach weighing 10 Kgs. The said silver granules were of identical brand, Country of Origin and weighing 10 Kgs. In the said case, the purchaser Shri .Shiv Sahai of Salem produced the documents including airway bill in support of the imported silver granules. This would go to show that the said manufacturer in Korea is engaged in manufacturing and dealing of silver granules which are imported to India. The packing /carton boxes seized in the present case, should therefore be considered as foreign markings of the silver granules. The circular, therefore, does not apply. 3.2 Further the appellants have not been able to show that they have obtained the silver by legitimate import. Though they have produced invoices of several silver dealers, the department had obtained letters from such silver dealers, wherein, it was stated that they have not supplied granules but sold only silver bars . The said letters are part of the relied upon documents. The judgments relied by learned counsel are not applicable to the facts of the present case. The decision of Maqsood Alam (supra) will not apply to the facts of the case since the goods involved there in is betel nuts and not notified goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession with foreign markings the same can be subject to seizure, if it is less than 100 kgs. In the present case, the quantity of silver bullion is 60 kgs. Then the question arises, whether silver granules would fall within the definition of silver bullion. The Commissioner (Appeals) in para 8 of his order has explained the meaning of bullion as seen in Wikipedia. Ordinary meaning of bullion given as per the dictionary is "Platinum, Gold or Silver, which is in bulk quantities". 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. The next question then is whether silver granules in the present case has foreign markings. Needless to say that 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been supplied by the silver dealers, the appellant could have processed the same into silver granules and then sent for job work to M/s. Vignesh Payals. There is no evidence substantiate that processing charges were paid for converting the bar into granules which is a bulk quantity of 60 kgs. The statement of Shri Gaurav Agarwal is totally silent on this aspect. At the cost of repetition it has to be mentioned that the carton boxes which contained the silver granules correctly mentioned the quantity in each box to be 10kgs, the name of manufacturer, the lot no. year of manufacture, purity etc. Further, it is a question to be answered by the appellant as to whether the silver granules after being processed out of a bar by the appellant retain such high purity. Thue the documents/accounts produced by appellant do not help the appellant to establish that the goods are not of smuggled nature. 7.0 The decisions relied upon by the learned counsel for the appellant are cases in which there wwere no foreign markings and, therefore, distinguishable. The decision in M/s. Murarilal Agarwal (supra) relied upon by the learned counsel, is a case of silver bars of foreign origin weighing less ..... X X X X Extracts X X X X X X X X Extracts X X X X
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