ORDER
V.K. Ashtana, Member (T)
1. The short point in this appeal against Order-in-Appeal No. 50/98, dated 29-9-1998 is whether the burden of proving licit possession of one bar of silver weighing 30.449 kgs. lies on the present appellants under Section 123 of the Customs Act, 1962 or not ? If not, then whether the confiscation thereof and levy of penalty on the ground that no duty paying document particulars relating to the said metal were produced by the appellants is justified in law ?
2. Heard Shri R. Masillamoney, ld. Consultant for appellant who submits as follows :
(a) At the time of seizure of it was not of any coastal area in the town of Salem when the bar of silver weighing 30.449 kgs. had been seized but though the weighment slip No. 6502, dated 12-10-96 had been recovered by these Customs wing, the same was not included in the list of documents seized in the same Mahazar.
(b) The goods did not bear any foreign markings and since they were in a quantity of lesser than 100 kgs., therefore benefit of doubt contained in Board’s Circular F. No. 394/233/88-CUS (AS), dated 11-6-1990 should be made available to them and the redemption fine and penalty vacated. Ld. Consultant submits that in the said circular, the Board had directed that those silver bullions had been notified in Section 123 w.e.f. 8-6-1990. In order to prevent the undue harassment to law abiding persons possessing small quantities of silver bullion of Indian origin, normally the provisions of Section 123 should not be invoked against persons who are found to be in possession of silver bullion of less than 100 kgs. The exception however was not made available if the bullion had been in the form of 30 kgs. bars and also where the bullion bore foreign markings.
(c) In this case, though the bar is of 30.449 kgs. there is no evidence to show that bar bore any foreign markings at the time of seizure. Therefore, the bar has to be considered of Indian origin. Secondly, the place of seizure is away from the coastal area. Therefore, it cannot be said that there was any attempt to illicitly export the same. Thirdly, the Circular itself says that now there is no incentive for the illegal export of silver bullion as said bullion has been removed from the purview of Chapter IV-B of the Customs Act.
3. In view of the above submissions, Ld. Consultant prays that benefit of doubt be given to the party and the redemption fine and penalty vacated.
4. Ld. DR submits that since the silver bar was approx. 30.449 kgs, therefore, this is not the case where silver was held as either utensils or in any small piece and hence burden of proof is to be discharged by the present appellant under Section 123 of the Act.
5. I have carefully considered these rival submissions and records of the case. It is now well laid down law that the directions in the form Circulars issued by Board are binding on all lower authorities. A perusal of the said circular noted above shows that those silver bullion has been brought within the ambit of Section 123, the Board itself was desirous of ensuring that citizens in possession of Indian Silver should not face harassment. To that extent, the Board has laid down a policy that Section 123 need not be enforced by Executive Officer in certain cases. A perusal of the said order/circular shows that this exception was made in the case where either bullion was not in the form of 30 kgs. ingots, “and also where silver bullion is found to bear foreign markings, the question of seizure may be considered even when the quantity is less than Hundred Kilograms by an Officer not lower in rank than that of an Assistant Collector of Customs”. In the present instance, I find that Mahazar under which the seizure was effected clearly shows that seizure was effected by an Officer lower than the rank of the Asstt. Collector even though the ingot bore no foreign markings’ as per the Mahazar itself, and the quantity of the said silver was less than 100 kgs. To that extent, I find that firstly the seizure itself is in violation of the Executive’s instructions noted above issued by the Board and secondly, in view of the quantity being less than 100 kgs. and there being no foreign markings on the ingot, it would not be just and proper to shift the burden of proof under Section 123 on this appellant. Under these circumstances, the benefit of doubt is extended and the orders impugned are set aside and the appeal allowed with consequential relief, as per law.