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TMI Blog2025 (4) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... kings - Fine Silver Granules LMPT.IMK DO2 Refined and Produced by PT.ANTAM Tbk Unit BISNIS PP LOGAM MULIA JI.Pemuda.JI.Raya Bekasi Km 18, Pulogadung PO Box 1079 Jakarta 13010, Indonesia and Ag.CONTENT:MIN 99.95% NET WEIGHT: 10 kgs BATCH SERIAL No.0222NS0043/U01701 dated 07.02.2022 was seized from the appellant on 16.07.2022 on the ground of smuggle into India. Appellant stated the said silver was purchased by him from M/s D.P. Gold Pvt Ltd., Vijayawada vide invoice No. VJA0413/2022-23 dated 09.05.2022. Whereas, Mr. Dinesh Kumar Jain, Manager of M/s D.P Gold Pvt Ltd., Vijayawada, deposed that they have not sold the said silver. 3. A show cause notice was issued to the appellant proposing confiscation of 10 kg of silver in terms of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Jain and the witnesses to Punchanama in terms of Section 138B of the Customs Act and which is also settled law that cross examination is a mandatory requirement for admitting any statement. Inspite of all order has been passed in violation of principles of natural justice. 5. Learned Counsel for the appellant relied on the following case laws: i) M/s Andaman Timber Industries Vs CCE, Kolkata [2015 (324) ELT 641 (SC)] ii) M/s J.K. Cigarettes Ltd., Vs CCE [2011 (22) STR 225 (Delhi)] iii) Shri Rajesh Kumar Vs Commissioner of customs (Preventive), New Delhi [2022 (11) TMI 61 CESTAT- New Delhi] iv) Nand Kishore Modi Vs CC (Preventive), West Bengal [2015 (325) ELT 781 (Tri-Kol)] v) State of Maharashtra Vs Prithviraj Pokhraj Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 99.95% net weight: 10 kgs Batch Serial No.0222NS0043/U01701 dated 07.02.2022" was not sold by them, and further admitted that vide the said invoice they sold only 20 Kgs packing bags but not in 10 Kg Packing bags." 11. Therefore, no any dispute regarding purchasing of the seized silver. Only dispute is 10 kg package of silver PP gunny Bag or 20 kg packaging bag. No any description about the size of the bag in the invoices. Statement of Mr. Dinesh Kumar Jain was recorded near about after 5 months later from seizure and after purchasing 7 months. Department relied on the statement of Mr. Dinesh Kumar Jain, Manager, M/s D.P. Gold Pvt Ltd., Vijayawada and discarded the statement of appellant without any cogent and reasonable reason. Whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., Vs CCE [2011 (22) STR 225 (Delhi)], Wherein the constitutional validity of Section 9D of the Central Excise Act, 1944 has been upheld and held it to be a mandatory requirement under Section 138B of the Customs Act, 1962 being pari materia with the said Section 9D ibid the procedure prescribed under Section 138B of the Customs Act making mandatory which make the statement relevant. 16. Without giving appellant's right to cross-examination for Mr. Dinesh Kumar Jain, order was passed i.e. not legal and proper in the eyes of Law. 17. Department relied on M/s Gaurav Agarwal Vs CC, Tiruchirapalli [2020 (372) ELT 724 (Tri-Che)] in which Co-ordinate bench held that Silver found in carton bags specifically mentioning the name of foreign man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 of 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 Customs Act, 1962. Detailed instructions are being issued separately." Whereas the silver granules involved in the case are 10 kg and thus the seizure is unwarranted. In any case, the seizure, in this case was affected by a Superintendent, who is not competent to seize the silver less than 100 kg and thereby the seizure is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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