Customs, Excise and Gold Tribunal - Calcutta
Shri Ram Binoy Prasad, Shri Sushil Kumar ... vs Commissioner Of Customs, Patna on 21 December, 2000
Equivalent citations: 2001(132)ELT721(TRI-KOLKATA)
ORDER
Mrs. Archana Wadhwa
1. All the three appeals are being disposed of by a common Order as they arise out of the same set of facts and circumstances and the same impugned Order passed by the authorities below, vide which the silver valued at Rs.1.54 lakh has been absolutely confiscated and penalty of Rs.50,000.00 has been imposed upon the owner of the silver, Shri Jugeswar Dayal and of Rs.20,000.00 each has been imposed upon the other two appellants.
2. Briefly stated the facts of the case are as under:-
1.1. As per the Revenue, the two appellants namely Shri Ram Binoy Prasad and Shri Sushil Kumar Raut were intercepted while travelling in a bus coming from Samastipur at Bighoo More near Hajipur on 26.3.93. Their search resulted in recovery of 12 pieces of silver bars concealed in specially made jackets. On interrogation, the two persons disclosed that the silver in question was brought from Janakpur in Nepal and was being carried on behalf of one of Shri Jugeswar Dayal. Inasmuch as the appellants failed to produce any documents showing the legal importation of the silver in question, the Officers seized the same.
1.2. Based upon the above facts, a show cause notice was issued to all the three concerned, proposing confiscation of the silver and imposition of penalties. It is also seen that prior to the issuance of the show cause notice, Shri Jugeswar Dayal addressed a Protest Petition to the Commissioner of Customs, Patna, alleging harassment to his employees and illegal seizure of the silver from their possession. During adjudication, it was submitted that the silver in question was being sent by Shri Jugeswar Dayal through these two employees to Chunu Babu of Varanasi by a Punjab Mail on 27.3.93. The said two persons were taken down by the Customs Officers from the train and after being tortured and beaten up by the Officers, they were arrested and the statements were extracted from them. In support of his above submission, a letter addressed to Chunu Babu on 27.3.93, along with a Bihar Sales Tax Road Permit dated 27.3.93, was produced.
1.3. On adjudication of the said show cause notice, the original adjudicating authority confiscated the silver in question and imposed penalties as detailed above.
1.4. Appeal against the above Order also fails before the Commissioner(Appeals). Hence the present appeal.
2. Shri K.Chatterjee, learned Consultant appeared for the all the three appellants and Shri A.K.Chattopadhyay, learned J.D.R. for the Revenue.
3. I have given my careful consideration to the issues raised before me by the learned Consultant. It has been strongly argued that the silver in question was not having any foreign marks upon them and the entire case of the Revenue is based upon the two statements of the two employees of the third appellant. The said statements have been challenged as being involuntary and having been extracted under duress and threat. For this, my attention has been drawn to the Injury Report given by the doctor of the jail. It has been argued that if the said two statements are kept out of consideration, there is no other evidence on record indicating illegal smuggled character of the silver in question. Proof of other evidence has also been raised before me.
4. I find that admittedly, there are no foreign markings on the silver in question. There are only statements of the two employees of Shri Jugeswar Dayal and it has also been noted in the Seizure Memo that the silver is of (SIC)third country origin, as per the statements of the said two persons. It is well-settled that even in cases of goods being notified under Section 123, Revenue has to show that the goods are of foreign origin. The said statements of the two employees have been denied to be voluntary and true statements, inasmuch as there is Jail Doctor's Injury Report showing presence of injury marks on the body of the said two appellants. The said evidence definitely has the effect of doubting the truthfulness and voluntary nature of the said statements.
5. I also find that the appellants' case is that the said two employees were sent by Punjab Mail on 27.3.93 for delivery of the silver marked to one Chunu Babu of Varanasi. They have also produced the Bihar Sales Tax Road Permit certifying the covering documents for transport of silver slabs. The said evidence produced by the appellants have not been rebutted by the Revenue, thus tilting the weight of the case in favour of the appellants.
6. It is, further, found that the appellants challenged the seizure of the goods on 26.3.93, but contended that the same was effected on 27.3.93, as is evident from the various documents and the date was shown as 26.3.93 to support the Revenue's case. The Commissioner(Appeals) has observed that the alleged date-difference in the statements, even it is so, does not vitiate the seizure. I am afraid that the above view of the Commissioner(Appeals) is not correct. The said date-difference definitely raises the doubt as regards the correct time and place of seizure of the goods and the result of the same must go in favour of the appellants.
7. The silver bars are of 22 Kgs. and as per the Government of India's instructions, the silver bullion without foreign markings, should be seized only when the same is to the tune of 100 Kgs. or more. In the said instructions, it has been clearly mentioned that notified silver under Section 123 of the Customs Act, 1962 should in no way cause any harassment or inconvenience to artisons, silversmiths and silver dealers. Inasmuch as the silver in question was not carrying any foreign origin markings on the basis of which, learned Sessions Judge has also based his Bail Orders in favour of the appellants, I hold that the confiscation of the goods in question and imposition of penalty is not warranted. For the foregoing reasons, all the three appeals are allowed with consequential reliefs to the appellants and the impugned Orders are set aside.
(Pronounced in the Court)