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TMI Blog2003 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... de jackets worn by the said two persons named Shri Abhijit Saha and Shri Bidyut Karmakar. The officers seized the said silver bars on the reasonable belief that the same have been illegally imported into India. Samples of the seized silver bars were drawn and were sent to the Chemical Examiner, Customs House, Calcutta and vide his report dated 25-6-96 opined that the said seized silver bars contain 99.8% silver by weight. (b) Shri Abhijit Saha in his statement dated 7-2-96 deposed that he was working for one Shri Ashok Kr. Agarwal, who has a shop named as Goel Sons, Siliguri. The said Shri Agarwal took him and Shri Bidyut Karmakar to Nepal where he gave them the silver bars for concealing the same in the specially built jackets. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the authorities below vide which the silver was confiscated absolutely and penalties were imposed on various persons. On an appeal against the above order the Tribunal remanded the matter to Commissioner (Appeals) with directions to consider the appellants' pleas. The present impugned order passed by Commissioner (Appeals) is in de novo proceedings. 3.The appellants' contention duly represented by Shri K.P. Dey, ld. Advocate is there are no foreign markings on the 19 pieces of silver bars seized from the possession of two appellants Shri Abhijit Saha and Shri Bidyut Karmakar. In the absence of the said foreign markings, it cannot be held that the silver was of foreign origin. As such the provisions of Customs Act are not attracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above contentions has been placed upon the number of precedent decisions of the Tribunal. 5.Shri N.K. Mishra, ld. JDR appears for the Revenue and submits that in their on-the-spot statement the appellant had given the detailed account of the smuggling activities being carried out by the said two persons at the behest of Shri Ashok Kr. Agarwal and Shri Saheba Bhosle. He submits that though the said statements were retracted by the appellants at the time of filing of their bail application before the Judicial Magistrate, they never disclosed that the silver in fact belong to Shri Amal Kr. Ghosh. The said Shri Ghosh was brought into picture only during the course of adjudication proceedings when an affidavit duly sworn in by him was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of seizure the appellant could not produce any documents to show the legal ecquisition and possession of the same. Both the persons in their on the spot statements admitted that the said silver bars have been brought by them from Nepal and have also gave the details of the past transactions when they had gone to Nepal earlier and brought the bars and delivered the same to one Shri Saheba Bhosle. The appellants' contention is that the said statements are not voluntary statements inasmuch as they were retracted subsequently. However, I find that in the said statements the appellants have given all the details of the transactions and as such it cannot be said that the statements in question were not voluntary. The details given by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) on the ground that such recovered metal cannot be of high purity of 99.8%. Furthermore Shri Amol Kr. Ghosh has also not been able to give the names and address of the silversmith who has melted the old utensils on his behalf. The fact that the silver was found to be of 99.8% purity is indicative of the same being, of foreign origin. 8.The appellants have strongly relied upon the Board's Circular No. 394/233/88-Cus.-AS, dated 11-6-90, which is to the effect that the provisions of Section 123 of the Customs Act, 1962 should not be invoked normally against persons who are found in possession of silver bullion of less than 100 kg. The expression used is normally and it does not debar the Revenue officers to seize the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safely concluded based upon statements of the said two appellants that Shri Abhijit Saha as also Shri Ashoke Agarwal were involved in the illegal activity of smuggling silver into the country. As such I hold them liable to personal penalty along with the liability of Shri Abhijit Saha and Shri Bidyut Karmakar to the personal penalties. The claim of Shri Amol Kr. Ghosh to the seized silver is not sustainable for the reasons recorded in the preceding paragraphs. 10.As a result I uphold the confiscation of the silver in question. However, keeping in view the totality of facts and circumstances of the case I reduce the penalties on the four appellants as follows : Appellant's name Penalty imposed Penalty reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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