YAMUNA PRASAD SAH Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) HEARD Shri B.N. Chattopadhyay, Consultant for the appellant and Shri K.K. Sanyal, JDR for Respondent. Mr. Chattopadhyay submits that in Order -in -Appeal dated 30th May, 2003 the Commissioner of Appeals has confirmed the order of Adjudicating Authority absolutely confiscating the silver weighing 14.414 kgs. valued at Rs. 86,484/ - under Section 111(d) of the Customs Act, 1962 and Indian and Nepali Currency worth Rs. 1,51,150/ - under Section 121 and Rs. 32,105/ - under Section 121 read with Section 111(d) of the Customs Act, 1962 and imposing penalty of Rs. 1,00,000/ - under Section 112(b) of the Customs Act, 1962 upon each of the appellants. He submits that in present case no reasonable believe was existing before making seizure since the existence of reasonable believe is a pre -condition of seizure. Therefore, the seizure is bad in law. He submits that the seized silver is not having any marking showing the foreign origin which is evident from the seizure memo. The Report of the Mint was not produced before the Court nor it was produced before the Court of the Economic offence. The seizure was made in violation of the provisions of the Boards circular that the Silver less than 100 kgs. bearing no foreign marking cannot be seized. It was less than 100 kgs. and some pcs. was less than 30 kgs. Therefore, the silver under seizure was not covered under Section 123 of Customs Act. The burden to prove the smuggled nature of Silver was of Department. He relies on the decisions reported in 2001 (131) E.L.T. 198 (T) = 2000 (40) RLT 872, 2001 (127) E.L.T. 286 and 2001 (132) E.L.T. 721 = 2001 (43) RLT 234 and the Order of this Bench having No. A -385/Kol/2001 dated 30 -5 -2001. He, further, submits that the statement of the Appellant extracted from the appellant after prolonged detention and the said statement cannot said to be voluntary. Statement was retracted from the jail custody which cannot be termed as after thought. He relies on the decision reported in 2001 (133) E.L.T. 679. He submits that the statement was retracted at the earliest opportunity. No reliance can be placed on such statements. He relies in the case of 2001 (135) E.L.T. 503. He submits that retracted statement cannot be made on the sole basis to proceed against the person. He submits that regarding Indian currency, the same cannot be confiscated under Section 121 unless it is proved beyond doubt that the said Indian currency was a sale proceeds of the smuggled goods. He relies on the decision reported in 2001 (136) E.L.T. 116 (sic), 2000 (126) E.L.T. 48 (Mad.) and 2003 (158) E.L.T. 725. Regarding confiscation of Nepal currency is concerned, he submits that the court of the Economic Offence has held that the violation of Notification No. 76/Cus/65, dated 13 -6 -65 or the Section 50 of the FERA have not been vitiated since the prosecution failed to prove this. Further, he submits that there is no bar for a person to take or send within India or in Nepal Indian currency notes (not being notes of the denomination of above Rs. 100/ -) and Indian coins or Nepali notes or coins without any limit. He, further, submits that the general permission has been granted by the Reserve Bank of India for bringing foreign exchange into India by any person outside India without limit. However, for the concrete value of the foreign exchange brought in by him in the form of currency notes, bank notes and travellers cheque did not exceed 1000 or equivalent. The CDR was not required to be completed. The limit of US 1000 has now been raised to US 10,000 and accordingly declaration form of CDR is not necessary if total foreign exchange brought into India in the form of currency notes, Bank Notes and Travellers cheque does not exceed the US 10,000 under Circular No. 24/91. Therefore, he submits that the order passed by the authority below is bad in law. The Department failed to discharge their obligation. Therefore, he submits that the appeal may be allowed.

(2.) LEARNED D.R. supports the impugned order. He submits that the burden is cast upon the appellant to prove the licit possession of the silver which the appellant failed to discharge. Therefore, he submits that the lower authorities have rightly confiscated the silver and the currency. He submits that there is admission by the appellant of the foreign origin of the silver and therefore the impugned order does not require any interference. Therefore, he submits that the appeal may be dismissed.

(3.) IN present case, the seized silver is not having any marking showing the foreign origin which is evident from the seizure list. In present case the total weight of the seized silver is 14.41 kgs. which is less than 100 kgs. and the total number of pcs. are 10. The weight of individual pc. is less than 30 kgs. It is also evident from the seizure memo filed by the appellant which was against the circular issued by the Ministry of Finance, Circular No. 394/233/88/Cus/ES issued by Govt. of India, Ministry of Finance, Deptt. of Revenue (Anti Smuggled Unit). This Tribunals Larger Bench in the case of Shambhu Nath v. Commr. of Customs, Lucknow reported in 2002 (142) E.L.T. 342 (Tri. -LB) has observed that : Any person so aggrieved by seizure/confiscation of his silver bullion, it was upon to him to test it on the strength of above circular. The appellants case regarding the seizure of silver is squarely covered by the decision rendered in the case of Murarilal Agarwal v. Commr. of Central Excise, Trichy reported in 2005 (179) E.L.T. 110 (Tri. -Chennai). In present case also the seized silver having no foreign, the total weight of silver is less than 100 kgs. and the individual pc. of silver is less than 30 kgs. Therefore, the seizure was against the circular issued by the Revenue. The Revenues entire case is built upon the basis of the statement which is contested by the appellant as involuntary. The statement was recorded after detention and the appellant was sent to judicial custody. He retracted the statement from the judicial custody which cannot be termed as after thought. It was retracted at the earliest point of time from the jail custody and cannot be said to be after thought. Therefore, no reliance can be placed on such statement as laid down in case reported in 2001 (135) E.L.T. 503 (Tri. -Del.) Atul Kumar Kataria v. Commr. of Customs, New Delhi. In present case the confiscation of goods has been ordered on the sole basis of the confessional statement which was subsequently retracted by the appellant. No such confiscation can be ordered on the sole basis of retracted confessional statement of the appellant as held in the case of Ramprakash v. Collector of Customs, New Delhi reported in 2003 (161) E.L.T. 882. In present case the smuggled goods silver weighing less than 100 kgs. and bearing no foreign marking. In such a case the burden of proof of the smuggled nature of the silver is cast upon the Department as held in the case of N.S. Allaudeen v. Commissioner of Customs, Trichy reported in 2000 (40) RLT 872 (CEGAT). So far the currency is concerned under Section 123 of Customs Act, it is not applied to the currency under seizure. Therefore, the burden in such cases not covered by Section 123 and therefore, it is to be discharged by the authority concerned. It is to be done by the authorities with evidence that the currency by virtue of nature of transaction is liable to be confiscation under 121. In present case, the burden has not been discharged by the authority and since the appellants statement itself cannot find the sole basis for the confiscation of the currency, the currency cannot be held to be confiscable under section 121 as held in the case of K.P. Basheer v. Collector of Central Excise, Cochin reported in 1999 (109) E.L.T. 247 (Tribunal). The Department has failed to prove that the Indian and Nepali currency was the sale proceeds of the smuggled goods. Regarding the Nepali currency, the Court of Economic Offences has held that the violation of Notification No. 76/CUS/65, dated 13 -6 -65 or Section 60 of FERA have not been violated since the prosecution failed to prove their case. Furthermore, a person can take or send within India to Nepal Indian currency notes (not being the notes of the denomination of Rs. 100.00) and Indian coins or Nepali notes or coins without any limit. Section 13 of Foreign Exchange Law and Act practised by Sri S.K. Gupta, 1993 addition page 1.105). The import of foreign exchange has also been relaxed by circular No. 24/91. The limit has been raised to US 10,000 $ and accordingly declaration of form CDR is not necessary for total foreign exchange brought into India in the form of currency note, bank notes and travellers cheque does not exceed US $ 10,000.00 AD (MA series) circular No. 24/91.