Customs, Excise and Gold Tribunal - Calcutta
Shri Ram Lal Sah vs Commissioner Of Customs, Patna on 30 May, 2001
Equivalent citations: 2001(136)ELT1407(TRI-KOLKATA)
ORDER
Smt. Archana Wadhwa
1. Vide the impugned order, the silver weighing 11.425 kgs. valued at Rs. 77,690/- has been confiscated absolutely and penalty of Rs. 20,000/- has been imposed upon the appellant. The said silver was recovered from the possession of one Sri Sadashiv Bombaywala at Raxaul during search of his shop premises. Sri Sadashiv Bombaywala denied the ownership of the goods in question and deposed that the same belonged to the appellant, Shri Ram Lal Sah. During investigation proceeding, Shri Lal Sah accepted the ownership of the said silver and claimed that the same was melted by him out of the silver given by various persons and the same was given the shape of uniform slab. The said silver was also embossed with his symbol seal.
2. On the above basis, the appellant was issued a show-cause notice which culminated into the orders passed by the original adjudicating authority. Appeal against the above order did not succeed before the Commissioner (Appeals). Hence the present appeal.
3. Shri B.N. Chattopadhyay, ld. Consultant has appeared on behalf of the appellant and Shri V.K. Chaturvedi, ld. SDR has appeared for the Revenue.
4. The min contention of the appellant is that the silver in question was of indegineous origin and was not having any marking showing the foreign origin of the same. As such, the very first step required to be proved by the Revenue was not available. He also submitted that the silver was weighing less than 100 kgs, and according to the Board's Circular, the same could be seized only by an officer of the rank of Assistant Commissioner. He has referred to the various decisions of the Tribunal. In the case of N.S. Allaudeen Vs. Commissioner of Customs, Trichy reported in 2000 (40) RLT 872 (CEGAT), it was observed by the Bench that silver is less than 100 kgs. and bearing no foreign markings and seized by an officer below the rank of Asstt. Commissioner was contrary to the Board's Circular. Burden to prove licit possession of the silver was not on the appellant, though silver was notified under Section 123 of the Customs Act. Similarly, I find that in the case of Gauri Shankar Singh Vs. Commissioner of Customs, Kanpur reported in 2001 (127) ELT 286 (Tribunal-Del.), it was held that the silver slabs recovered from the appellant having no foreign marking and no record to correlate the same being of Nepali origin or brought from Nepal was not justified. The impugned order in that case was accordingly set aside and the Department was directed to release the goods to the appellant. In he case of Ram Binoy Prasad & Ors. Vs. Commissioner of Customs, Patna reported in 2001 (43) RLT 234 (CEGAT-Kol), the silver without any foreign marking and based upon the confessional statements of the appellant was held not liable to confiscation.
5. In the present case also, I find that the Department has not adduced any independent evidence as regards the foreign origin of the goods except the statements of Shri Sadashiv Bombaywala which in turn is not based upon his personal knowledge but can be said to be a statement based upon hear-say evidence. On the contra, the appellant has claim that the silvers in question were bearing their symbol seal. As such, in the absence of any evidence to show the foreign origin of the goods and by applying the ratio of the decision as discussed in the preceding paragraph, I hold that the confiscation of the silver and imposition of personal penalty upon the appellant was not justified. The impugned order is thus set aside and the appeal is allowed with consequential relief to the appellant.
Dictated and pronounced in the open Court.