ORDER
Archana Wadhwa, J (Member)
1. All the five appeals are being disposed of by a common order as they arise out of the same impugned order passed by Commissioner (Appeals). 2. Briefly stated the facts of the case are as under:
(a) On 6.2.96 a Coochbihar bound bus was intercepted by the customs officers and two persons sitting in the said bus were put to search. On personal search silver bars were found concealed in the specially made 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 dt. 25.6.96 opined that the said seized silver bars contain 99.8% silver by weight.
(b) Shri Abhijit Saha in his statement dt. 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 jacets. They were directed to carry the said silver to Siliguri and to deliver the same to one Saheba Bhosle. He also conceded that he has brought silver from Nepal on earlier occasions also for Shri Ashok Kr. Agarwal and has delivered the same to Shri Saheba Bhosle and in exchange for the same he used to bring gold bars from Shri Saheba Bhosle and delivered the same to Shri Ashok Kr. Agarwal. He was being paid for the said job by Shri Ashok Agarwal. To the same effect was the statement of Shri Bidyut Karmakar.
(c) In the follow up actions Shri Ashok Kr. Agarwal and Shri Saheba Bhosle were contacted and in their statement they denied any connection with the seized silver.
(d) On the above facts all the appellants were issued a show cause notice dt.11.11.96 proposing confiscation of the seized silver and impositon of personal penalties upon various persons. In reply to the show cause notice Shri Bidyut Karmakar produced a zerox copy of an affidavit dt.20.3.96 stating that he was employee of one Shri Amal Kr.Ghosh of Coochbihar and he and Shri Abhijit Saha were sent to Siliguri market alongwith the silver bars for sale of the same. As they could not sell the goods they were bringing the same back to Coochbihar when they were intercepted by the customs officers. The said Shri Amal Kr, Ghosh was also heard by the authorities on the directions of the Hon’ble High Court.
(e) The proceedings initiated against all the appellants culminated into an order passed 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. Adv. 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. Strong reliance has also been placed upon the Board’s Circular F.No. 394/232/88-CUS(AS) dt. 11.9.90 which is to the effect that if the quantity of the silver is less than 100 kg., the same would not be seized by an officer lower in rank than the Asstt.Commr. and the provisions of Section 123 of the Customs Act should not be invoked against the said persons. Ld. Adv. submits that the Larger Bench of the Tribunal in the case of Sambhu Nath and Anr. v. CC, Lucknow, 2002 (50) RLT 405 (CEGAT-LB) has taken note of the said circular and has returned the matter to the referring Bench for taking the same into consideration, He has also relied upon a number of other decisions to the effect that uncorroborated retracted statement cannot be made the sole basis for holding that the silver in question was of smuggled character.
4. As regards the other appellants Ld. Adv. submits that Shri Amal Kr. Ghosh has claimed the ownership of the silver in question and has produced all the relevant documents for the same. It was not open to the Ld. Commissioner (Appeals) to reject his claim on the sole ground that the same was made during the course of adjudication proceedings without examining the genuineness of the documents. He also submits that the penalty upon Shri Ashok Kr. Agarwal and Shri Saheba Bhosle is not justified having been imposed on the basis of’the uncorroborated statement of the co-accused. Reliance in support 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 presented, alongwith documents in support of its claim that the silver was a part of his business stock. As such submits the Ld. JDR that the same have been rightly rejected by the Commissioner (Appeals) as an after-thought. He also places reliance on the Tribunal’s decision in the case of Kailash Ch. Jain v. CCE, 2002 (81) ECC 440 (Tri-Del.) : 2002 (143) ELT 195 (Tri-Del.) wherein it was held that the Board’s Circular dt. 6.11.90 does not debar the Superintendent from seizing the silver and the absence of foreign markings on some of the seized silver pieces does not mean that the silver is not of foreign origin when the purity of the silver is on the higher side.
6. As regards the imposition of penalties upon the other appellants he submits that the two persons i.e. Abhijit Saha and Bidyut Karmakar have clearly deposed in their initial statement that they were working for Shri Ashok Kr.Agarwal and Shri Saheba Bhosle. The said statement has been rightly relied upon by the authorities below for imposition of penalties on Shri Ashok Kr.Agarwal and Shri Saheba Bhosle. In these circumstances he prays for rejection of the appeals.
7. I have considered the submissions made by both the sides and have gone through the impugned order passed by the authorities below. Admittedly silver lumps were recovered from the person of the two appellants herein Shri Abhijit Saha and Shri Bidyut Karmakar. The said silver bars were found concealed in the specially made jackets worn by the said appellants. At the time of seizure the appellant could not produce any documents to show the legal aquisition 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 appellants in the said statements could be only in the personal knowledge of the appellants and as such cannot be said that the statements were dictated. There is also nothing on record to show that any threat force or pressure was utilised by the officers to extract the above statements from the two appellants in question. It is also seen that the statements of both the appellants corroborate each other. It is also seen that neither at the time of giving statements or at any time thereafter before filing reply to the show cause notice the appellants had disclosed that the silver bars in question belong to Shri Amol Kr. Ghosh. It was only at the time of filing of reply to the show cause notice that said Shri Ghosh was brought into picture by the noticees. Even at the time of moving his bail application before the District Magistrate, the appellant had not disclosed that the bars in question belong to Shri Amol Kr. Ghosh. If, in fact the goods belong to Shri Ghosh, it is not understood what prevented the said two appellants from disclosing the said fact before the Judicial Magistrate at the time of moving his application. As such I fully agree with the reasoning of the authorities below that Amol Kr. Ghosh has been
brought into picture at a later stage only to cover the illegal activities of the said two appellants. I also find that the claim of Shri Amil Kr. Ghosh that the said metal bars have been obtained by melting broken old utensils of silver has been rightly rejected by 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 silver smith 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 dt. 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 silver in case they believe and there is evidence to show that the same is of smuggled character. The said circular also goes on to say that if the silver bullion is in the shape of bars weighing 30 kgs. Each and is found to be with foreign markings the question of seizure may be considered even when the quantity is less than 100 kgs. As such the appellants reliance on the said circular to show that the seizure itself was bad is not appreciated.
9. The appellants have also placed reliance on a number of earlier decisions of the Tribunal releasing silver when there are no foreign markings on the same. However, I find that the facts and circumstances of each case of seizure are different and the decision is based upon taking into account the facts available in each and every case. As already observed by me in the instant case there is a detailed statement of two appellants showing that the silver in question was brought by him from Nepal at the behest of one Shri Ashok Agarwal and was being delivered to Shri Saheba Bhosle who in turn was giving the gold bar for delivery to Ashok Agarwal. Though the said two persons have denied their involvement but I find that it is not the sole statement of one of the co-accused, which has been made the basis to penalise the said Shri Ashok Agarwal and Shri Saheba Bhosle by the authorities. The statements of Shri Bidyut Karmakar and Shri Abhijit Saha are to the same effect and find corroboration with each other. As such it cannot be safely concluded based upon statements of the said two appellants that Shri Abhijit Saha as also Shri Ashok Agarwal were involved in the illegal activity of smuggling silver into the country. As such I hold them liable to personal penalty alongwith 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
Shri Bidyut Karmakar
Rs.
10,000
Rs. 5,000
Shri Abhljit Saha
Rs.
10,000
Rs. 5,000
Shri Ashok Agarwal
Rs. 50,000
Rs.
10,000
Shri
Saheba Bhosle
Rs. 50,000
Rs. 10,000
All the appeals are disposed in above terms.