ORDER
Jyoti Balasundaram, Member (J)
1. These four appeals arise out of a common order and hence being heard and are disposed of by this common order.
2. The brief facts of the case ate as follows:
Acting on information one Shri Tilak Raj and other appellants were intercepted at about 8.00 P.M. on 25.3.1983 while alighting from the train at Amritsar. They were searched and various quantities of silver were found concealed by them in waslis around their waists. Their statements were recorded and investigations were taken up. Show cause notice dated 7.10.1983 was issued to all of them and adjudication that followed resulted in the impugned order dated 10.1.985 under which the seized silver was ordered to be confiscated and penalties were imposed. Aggrieved by this order the appellants preferred appeals to this Tribunal which were disposed of by order No. A/100-113/88-NRB dated 23.3.1988, setting aside the impugned order and remanding the matter for fresh adjudication as the Bench was of the opinion that the adjudication had not been fairly conducted. After the order of the remand parties were heard and additional information viz. (a) letter of the Assistant Collector (Preventive) New Delhi and (b) statement of Shri Baldev Raj Yadava, Proprietor of M/s. B.R. & Company and (c) Bill No. 604 dated 25.5.1983 along with page 9 of ‘Roker’ were supplied to the appellants. The order now challenged was passed by the Additional Collector who once again confiscated absolutely 30 pieces of silver weighing 32.010 Kgs. valued at Rs. 1,21,638/- under Section 113 of the Customs Act, 1962 and imposed personal penalty of Rs. 35,000/- on Shri Tilak Raj and Rs. 5000/- on the other 3 appellants under Section 114 of the Customs Act.
3. We have heard Shri M. Ganesan, earned Counsel for the appellants and Shri Bhushan, learned SDR for the Department.
4. The recovery of the silver is not denied by the appellants. It is their case that the silver was lawfully acquired by Shri Tilak Raj at Delhi and that the other appellants had been taken by him along with him for transporting the silver to Amritsar. In his statement at the time of seizure Shri Tilak Raj stated that he had acquired the silver from M/s. Shiv Trading Company at Delhi. However, subsequently in the reply to the show cause notice, he stated that he ad acquired the silver from M/s. B.R. & Company and not from Shiv Trading Company whose name had been given by mistake since he was having dealings with both firms. Admittedly there was no transport voucher for the transport of silver. However, the appellants contend that Shri Tilak Raj had with him at the time of seizure sale voucher issued by B.R. & Company.
5. The question is whether the bill No. 604 dated 25.5.1983 was a genuine one covering the silver seized in this case. It is pertinent to note that Shri Tilak Raj in his statement on 25.5.1983 clearly stated that he had purchased the silver from one Shri Krishan of Chandni Chowk, Delhi c/o Shiv Trading Company. When contacted by the Customs Department Shri Krishan denied the sale of silver to Shri Tilak Raj and he retracted his statement of 25.5.1983 only when show cause notice was served on him and only then he came up with a new version that the above silver was purchased from M/s. B.R. & Company. This would indicate that the bill No. 604 of B.R. & Company was prepared as an afterthought to attempt to regularise the sale of silver through a registered dealer. The adjudicating authority has rightly disregarded the statement of Shri Baldev Raj of B.R. & Company as lacking credibility.
6. The contention of the earned Counsel is that the appellants only intended or made preparations for exporting silver illegally and in the absence of actual attempt to export, confiscation is not warranted. The clandestine manner of transport viz. concealment around the waist and absence of transport voucher would cumulatively point to an attempt to improperly export the silver and therefore, Section 113 is attracted in this case. The earned Counsel also cites a decision of the Tribunal in the case of M/s. Shah Champaklal and Balubhai versus Additional Collector of Customs reported in 1988 (16) ECR 1 (Tribunal) wherein the order of confiscation of silver made under Section 113(c) was set aside holding that non-entry in the Register or the voucher being not in conformity with the provisions of IVB of the Rules made therein would not be sufficient to hold that the silver was transported to the shop premises of M/s. Champaklal Nagindas Jariwala for the purpose of being exported to a port other than the Customs Land Station or a Customs Port appointed for loading of the silver. The facts of that case are however, not applicable to this case–the evidence therein did not disclose that the silver was brought for the purpose of being exported. The evidence disclosed that the silver was sent from Varanasi under a voucher countersigned by the Superintendent of Central Excise and was received at Surat for and on behalf of the appellants. The silver was however, transported from the shop premises of M/s. Champaklal and Balubhai to the shop premises of Champaklal Nagindas Zariwala. The Customs Act did not prohibit transport of silver from a dealer to another dealer or to any other person. The Tribunal held in the facts of that case even according to the findings of the Additional Collector the appellants themselves did not intend to export the silver. The acts or omissions on the part of the two firms was held to act at best establish preparation to export and not attempt to export In this case, however, we find that the silver was concealed, it was transported without any voucher–the evidence points to the inescapable conclusion that there was an attempt to export and, therefore, Section 113 has been validly invoked for confiscation.
7. The earned Counsel contends that the transport of silver without a transport voucher was only a technical violation and in support of his contention he placed before the Bench an Order of the CEGAT–Order No. A-127/85-NRB dated 26.2.1985 in the case of Darshan Lal v. Collector of Customs, Chandigarh. In that case the appellant, an approved notified dealer was apprehended near his residence at Amritsar on return from New Delhi where he had gone to convert silver into ornaments for sale in the local market. The Tribunal upheld the seizure, holding that the silver was not accompanied by a voucher when it was admittedly transported from Delhi to Amritsar which is an offence in terms of Section 11H and K of the Customs Act read with Notification No. 50 & 51 dated 27.3.1980 issued by the Government. The Tribunal upheld the confiscation of the silver and the liability to penalty. However, they showed some leniency in the matter even though an offence had been made out in respect of silver. Therefore, they ordered release of the silver on payment of a fine of Rs. 15,000/- and reduced the penalty to Rs. 5,000/-.
8. We are of the opinion that considering that the first appellant Shri Tilak Raj is since deceased some leniency can be extended to the appellants even while upholding confiscation of the silver. We direct that the silver be released to the legal representative on payment of a fine of Rs. 1,50,000/-. The penalty on Shri Tilak Raj is reduced to Rs. 20,000/- (this is inclusive of the amount of Rs. 10,000/- said to have been deposited by the first appellant) and the penalties on the other appellants are reduced to Rs. 1500/-each.
9. The appeals are disposed of in the above terms.