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TMI Blog2002 (10) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... nd valued at Rs. 6,80,700/- absolutely. In addition penalties have been imposed upon various persons. 4.As per the facts on record, a tractor was intercepted by the police officers at Araria Camp on 19-10-94. Search of the said tractor resulted in recovery of 34 pieces of silver bars weighing 97.244 Kgs. and concealed in the gear oil chamber of the tractor. The tractor at the relevant time was being driven by Shri Ramjee Bhagat. Interrogation of Shri Ramjee Bhagat by police revealed that the said 34 pieces of silver were illegally smuggled by one Shri Shree Bhagat, son of Shri Hiralal Bhagat from Nepal and he has kept the same concealed in the tractor. Shri Shree Bhagat was following the tractor on a scooter. However, the said Shri Shree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities was under duress and coersion and was subsequently retracted by him and as such cannot be made the basis for holding that the silver was smuggled; that the silver has been obtained by the appellants from the old ornaments and utensils given to the various members of the Bhagat family from their in-laws' side at the time of marriages; that they were under a threat of dacoity and for which reason they melted entire silver goods for the purposes of keeping the same in the lockers; that inasmuch as the quantity of silver was less than 100 Kgs. the burden of proof that the same was not smuggled did not rest upon the appellant and in terms of the Board's circular issued from F. No. 394/233/88-Cus., dated 11-6-90 wherein it has been clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alise appellants' illegal businesses. Both sides relied upon various case laws in support of their submissions. 9.I find that as per the undisputed facts on record silver bars to the tune of 97.244 Kgs. were recovered from the gear oil chamber of the tractor. The driver of the tractor in his on the spot statement has admitted that Shri Shree Bhagat was the owner, who was engaged in smuggling of the silver from Nepal. Silver is a specified item under the provisions of Section 123 of the Customs Act and it is for the person, from whose possession the silver is recovered or who is claiming to be the owner of the silver to prove that the silver in question is not smuggled and has been procured by him from legal indigenous sources. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he neither knew Shri Hiralal Bhagat and his family nor Shri Ganori Sah and has never participated in the melting of silver with Shri Ganori Sah. He also clarified that he does not know the procedure of melting of silver. As such it becomes clear that the appellant could not establish that the silver in question has come into existence as a result of melting of the old ornaments and utensils. The adjudicating authority has also observed that the foreign markings were erased by Shri Ganori Sah from the silver and as such the question of their not being present on the silver cannot be of any help to the Appellants. 12.The next issue is as to whether the statement of the driver is an evidence which is to be relied upon or not. The statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by melting of utensils would not be of that purity as it needs to be mixed with some other metals for hardening the silver. 15.The appellants have strongly relied upon certain decisions in support of his defence that where there is no direct evidence of illegal importation of silver into the country and when the silver does not bear the foreign markings, benefit of doubt should be extended and the silver is to be released. However, I find that in the present case there is strong circumstantial evidences to arrive at a conclusion that the silver in question has been smuggled by the appellants from Nepal, who have tried their best to erase the foreign markings to cover their activities in the garb of melting of old silver utensils. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to confiscation under the provisions of Section 115 of the Customs Act. The owner has already been given an option to redeem the same on payment of redemption fine of Rs. 25,000/- (Rupees twenty-five thousand), which in my views is not on the higher side and needs no interference. 19.As regards the personal penalty on Shri Shree Bhagat in view of my findings above, the same is upheld. As regards the penalties of Rs. 20,000/- (Rupees twenty thousand) imposed on each Shri Satya Narayan Bhagat and Shri Hiralal Bhagat and a penalty of Rs. 10,000/- (Rupees ten thousand) on Smt. Moti Mala Devi Bhagat and Shri Ramjee Bhagat I find that the family members of Shri Shree Bhagat and their specific role in being involved in smuggling of sil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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