JAGDISH SHANKER TRIVEDI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These five appeals are direct -ed against the order of the Commissioner of Central Excise, Kanpur made on 4.8.1999 by which the Commissioner ordered confiscation of 79 silver ingots weighing 2640.277 Kgs. valued at Rs. 1,75,60,169/ - which were recovered and seized from the premises of "Doodh Ki Dairy", Poni Road, Jhandey -Wala Chauraha, Bramh Nagar, Shukla Ganj, Unnao under Section 111(d) of the Customs Act, and confiscating 25 silver slabs weighing 373.365 Kgs. valued at Rs. 24,82,877.20 recovered and seized from the Maruti Van No. MP/09 H/2648, 25 silver slabs weighing 374.5 Kgs. valued at Rs. 24,90,425/ - recovered and seized from Maruti Gypsy No. UP/78F/5344 and 14 silver slabs and one silver "thakia" (lump), recovered and seized from the melting unit of M/s. Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur weighing 223.230 Kgs. and vlaued at Rs. 14,77,829.50 paise, under Section 111(d) read with Section 120 of the said Act. The Commissioner also confiscated the cast/mould (Sancha) used for melting/casting silver slabs, etc. seized from the refinery unit of M/s. Ram Avar Naresh Kumar, under Section 118 and 119 of the said Act. The Maruti van and the Maruti Gypsy were also confiscated under Section 115(2) of the said Act. The Commissioner imposed personal penalties under Section 112(b) of the said Act on eight persons including the appellants of these five appeals. The appellant Ashish Kumar Chaursia, alias Pappu Doodhwala (Appeal No. C/376/99) and the appellant, Ram Avatar Singhal (Appeal No. C/30/2000) were imposed penalty of Rs. 2.5 crores each while penalties of Rs. 5 lacs each was imposed on Ram Kishore Mishra who had accompanied in the Maruti van (Appeals) No. C/381/99), and Jagdish Shankar Trivedi who had accompanied in the Maruti Gypsy, (Appeals) No. C/360/99) and Rs. 50 lacs on Dilip Kumar Singhal, partner and nephew of Ram Avatar Singhal, (Appeal No. C/31/2000)

(2.) On the basis of the information received by the Directorate of Revenue Intelligence, Delhi, a team of Officers and Staff of Customs and Directorate of Revenue Intelligence, intercepted a blue maruti Van bearing registration No. MP 09 -H/2648 at about 11.00 AM on 18.12.92 near Mandhna Railway Station, G.T. Road, Kanpur. Shri Ram Bilash Mandal was the driver of that vehicle and Ram Kishor Mishra was found traveling in it. On being enquired, Ram Kishore Mishra admitted that 25 silver bricks, made out of the foreign marked smuggled silver ingots, were concealed in a specially designed cavity built in the floor of the Maruti van. He also stated that these 25 silver slabs were part of the consignment made out of the foreign marked silver ingots (silies) stored in the premises situated at Pony Road, Shukla Ganj, Unnao. The said Maruti van along with the driver, Ram Bilash Mandal and Ram Kishore Mishra were taken to the headquarters of the office of Customs and Central Excise, Kanpur, where the vehicle was searched and rummaged in the presence of two panchas and these two persons. The driver, Ram Bilash Mandal showed an unscrewed the specially designed cavity in the Maruti van and the search resulted in recovery of 25 silver bricks from that cavity and some documents relating to the vehicle. The recovery of 25 silver bricks were assayed by the Government approved assayer who found them to be "999 pure", weighing 373.365 Kgs. and of the value of Rs. 24,82,877.20 at the rate of Rs. 6650 - per Kg. as per his report dated 18.12.92. The officers under a reasonable belief that the recovered goods were made by recasting the smuggled contraband silver ingots of foreign origin were liable to confiscation under the said Act, Seized same under section 110 thereof under the panchanama dated 18.12.1992. The Maruti van was also seized under a panchnama.

(3.) The learned Commissioner after considering all the material on record in detail and noting the statements recorded including the statements recorded under section 108 of the said Act, came to a finding that it was established beyond doubt that the said 79 silver bricks which were recovered from the doodh ki dairy, Pony Road, Shuklaganj, Unnao valued at Rs. 1,75,60,169/ - were of foreign origin. Though these were recovered from the said premises which were jointly owned by Ashish Kumar Chaurasia (Appeal No. C/376/99) and his brothers Alok Kumar Chaurasia and Ansh Kumar Chaurasia, none of them had claimed the ownership of these silver bricks and they had denied any concern with them. The Commisioner held that these 79 silver bricks appeared to have been imported illegally into India in contravention of prohibition imposed on the import of silver and no document were presented regarding their proper importation. It was held that the onus of proving that these silver bricks were not smuggled was not discharged in terms of Section 123 of the said Act and that these 79 silver bricks were accordingly liable to confiscation under section 111(d) of the said Act. As regards the 25 silver slabs valued at Rs. 24,82,877.20 recovered from the specially designed cavity of Maruti van No. MP -09H/2648, it was found that these were sent by Dilip Kumar SInghal (Appeal No. C/31/2000) on the directions of Ram Avatar Singhal (Appeal No. C/30/2000) from the melting/refinery unit of M/s. Ram Avatar Naresh Kumar, 49/62 Bagla Building, Naya Ganj, Kanpur, but both these noticees expressed that they were least concerned with the seized silver. It was held that the purity of the silver was confirmed to be of .999 which could be obtained only by melting foreign origin silver bricks and that no documents evidencing legal importation or possession were submitted and, therefore, the onus under Section 123 of the said Act was not discharged making the said 25 silver bricks liable to confiscation under Section 111(d) read with section 120 of the said Act. As regards 14 silver bricks and one silver thakia valued at Rs. 14,77,829.50 recovered from the melting/refinery unit of M/s. Ram Avatar Naresh Kumar, it was held that since the seized silver was found to be of the prurity of .999, it was evident that the recovered silver slabs and thakia (lump) were made out of foreign marked silver bricks. The learned Commissioner has disbelieved the version that silver ornaments were supplied by Narendra Kumar of Rohtak which were covered into silver bricks for subsequent sale, holdding that it was only an after -though to shift the ownership of the sezied silver without any support of evidence. It was observed that that there was no reason why any person of Rohtak would supply such a large quantity of silver ornaments to a person in Kan for melting recasting and subsequent sale at Delhi Which was very close to Rohtak. Moreover, neither any claim was filed by Narendra Kumar in respect of the silver nor was any evidence furnished by Ram Avatar Singhal to show that the silver ornaments were given to him by Narendra Kumar of Rohtak. It was, therefore, held that the said 14 silver slabs and one silver 'thakia' were liable to be confiscated under Section 111(d) read with section 120 of the said Act. As regards the 25 silver slabs valued at Rs. 24,90,425/ - recovered from the Maruti Gypsy, the learned Commissioner holding that they were not claimed by the driver, Ram Kumar Kashyap nor by Jagdish Shanker Trivedi, the occupant of the Maruti Gypsy or Ram Avatar Singhal who sent these silver slabs from Kanpur to Delhi and that the purity of silver was confirmed to be .999 by the approved assayer making it clear that the silver slabs were made out of foreign marked silver bricks and that no documents for legal importation or possession were submitted, confiscated the same under section 111(d) read with section 120 of the said Act.