ORDER
Smt. Archana Wadhwa
1. All the five appeals have been disposed of by common order as they arise out of the same set of facts and circumstances.
2. Vide Order No. 757-Cus/97 dated 28.11.97, the Deputy Commissioner of Customs (Preventive), INB, Muzaffarpur, has confiscated 10 pcs. of Silver Slabs weighing 31.694 kgs. valued at Rs. 2,42,459/- under Section 111 (d) of the Customs Act, 1962 and imposed penalties of Rs. 20,000/- each S/Shri Uma Shankar Prasad Gupta, Smt. Manju Devi, Smt. Sunita Devi, Jagdish Prasad Gupta and Kailash Prasad Gupta, under Section 112 of the Customs Act, 1962. A penalty of Rs. 60,000/- was also imposed on M/s Vijay Prasad Deepak Kumar under Section 112 ibid. The said order was confirmed by the Commissioner (Appeals), Patna. Hence the present appeals.
2. I have heard Shri A. Sinha, ld. Consultant appearing for the appellants and Shri V.K. Chaturvedi, ld. SDR for the Revenue. It is seen that on 5.4.96, the Railways Police recovered 10 pcs. of Silver Slabs from five persons and handed over to the Customs, Jainagar on the same day. In interrogatory statements, the five persons admitted having collected the foreign origin silver slabs from Nepal from a person of M/s Vijay Prasad Deepak Kumar, Sitamari. They also disclosed that they were paid Rs. 200/- per trip. The purity of the silver slab was found to be 99.9%. As the said five persons could not produce any documentary evidence to show the legal possession of silver in question, the same totally weighing 31.694 kgs. was seized under the provisions of the Customs Act on the reasonable belief that the same was smuggled.
3. On a follow action, premises of M/s Vijay Prasad deepak Kumar were put to search but nothing contraband was recovered. On the above facts, the appellants were issued a show-cause notice proposing confiscation of silver and imposition of personal penalty upon the various persons. The said show-cause notice culminated into the impugned order passed by the Deputy Commissioner and on appeals, confirmed by the Commissioner (Appeals).
4. The appellants have mainly contended that the silver in question was of Indian origin inasmuch as there were not no foreign markings. The statements relied upon by the Revenue were retracted subsequently and were recorded by the officers under duress. There is nothing on record to show firstly the foreign origin of the goods and secondly the smuggled character of the same. Relying on the Telex Message No. 394/233/89-CVS/AS dated 16.5.95 of the Central Board of Excise and Customs, New Delhi, the ld. Consultant argued that as per the instructions contained therein the Customs authorities were forbidden to seize silver below 100 kgs. which is in the form of bullion and as such the present seizure which is less than 100 kgs is against the said instructions of the Board. For the above proposition reliance was placed upon the Tribunal’s decision as reported in 1999 (30) RLT 673 (CEGAT) as also on the decision as reported in 1996 (13) RLT 687.
5. After considering the submissions made from both the sides, I find that silver slabs in question admittedly did not have the foreign markings and the Revenue’s entire case is built up on the basis of the statements which have been contested by the appellants as involuntary. There is nothing on record to prove the smuggled nature of the seized silver except the retracted statements of accused persons. Taking into account the relied upon decisions by the ld. Consultant and as observed by the Tribunal in the case as reported in 13 RLT 687 that there being no foreign markings on the silver bar, 100% purity of the same and the factum of seizure near Pakistan Border, are not sufficient evidence to establish foreign origin, I set aside the impugned order and allow all the appeals with consequential relief to the appellants.