KAILASH CHAND JAIN Vs. COMMISSIONER OF CENTRAL EXCISE,

JUDGEMENT

(1.) This appeal has been directed by the appellants against the impugned order -in -original dated 13 -2 -2001 passed by the Commissioner, Central Excise vide which he had ordered absolute confiscation of 72 pieces of silver recovered from the appellant and imposed penalty of Rs. 5,00,000/ - on him.

(2.) The facts giving rising to this appeal may briefly be stated as under : - On the strength of a specific information, the officers of the Central Excise, Agra Division, conducted raid at the residential premises of the appellant at Agra on 19 -3 -96 at 12.00 hours. They conducted search of his house in the presence of two independent witnesses which yielded recovery of 72 pieces of silver which were lying concealed in a room near the staircase. The appellant, in his statement, recorded at the spot at that time, admitted recovery and further stated that out of 72 pieces, 17 carried mark of foreign origin and that he had purchased the same on 18 -3 -96 from Rakesh Dalal but whose residential address he did not know. Regarding payment, he stated that the same has not been made by him so far to Rakesh Dalal. He failed to produce any document to prove the purchase of recovered silver pieces at that time. The representative samples from the recovered silver pieces were taken in his presence and in the presence of two independent witnesses and the same were got tested from the office of General Manager, Government of India Mint, Mumbai for ascertaining purity. On test, purity was found to be 991.8, 999.1 and 999.3. The test report of the samples indicated that the silver recovered from the appellants was of foreign origin. Thereafter, summons were issued to the appellant but the same remained unserved for want of his availability at home. He, however, submitted xerox copy of affidavit dated 5 -4 -1996, wherein he described himself as Managing Director of M/s. Padam Deep Analytical Lab. Ltd., Kinari Bazar, Agra and disclosed that silver was purchased by him from M/s. M.D. Textile Industries Ltd., Connaught Place, New Delhi on 18 -3 -96, through bills detailed in the impugned order itself. He also disclosed that two silver bars purchased by him were got cut into 20 pieces from Prabhat Bullion Melters, Chandni Chowk, Delhi on 18 -3 -96 after paying Rs. 100/ - as labour charges. Similarly, another three silver bars were got melted and cut into pieces from that very Melters, on payment of Rs. 480/ -. This affidavit was submitted by him after 22 days from the date of the seizure.

(3.) After serving the show cause notice on the appellants wherein confiscation of seized silver pieces and imposition of penalty on him, was proposed and on getting his reply, the Commissioner passed the impugned order.