BRAJ BIHARI PRASAD Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) THESE appeals have been filed against the order in Appeal passed by the Commissioner of Appeals, Customs and Central Excise, Patna on 9 -5 -2003. In brief, the facts of the case are that on a specific information, Officer of Customs HQs. (Preventive), Patna on 3 -5 -1993 intercepted maruti van No. DAC -1219 near Gandhi Setu, Patna and recovered 16 pcs. of Silver of different size and shape weighing 80.450 kgs. secreted inside the inner panel of the rear door of the said maruti van. The two occupants of the said van S/Shri Mahesh Prasad, Manager and Ram Chandra Ram, driver of the firm M/s. Brij Bihari Prasad Prabhu Prasad, Sonapatti, Motihari, were apprehended by the Customs Officers. Shri Mahesh Prasad identified himself as the employee of the firm M/s. Brij Bihari Prasad Prabhu Prasad, Sonapatti, Motihari. In their confessional as well as interrogatory statements both stated that the owner of the recovered silver was M/s. Brij Bihari Prasad Prabhu Prasad and the owner of Maruti van was Shri Brij Bihari Prasad, partner of the firm. Shri Mahesh Prasad also stated that the recovered silver was of foreign origin smuggled from Nepal and foreign markings were obliterated by chiseling and melting and slabs were embossed with the marks of M/s. Brij Bihari Prasad to give colour of locally melted silver. Shri Mahesh Prasad also produced a printed challan of their firm issued in the name of M/s. Mahabir Abhusan Bhandar duly signed by Prabhu Prasad. Neither Sl. No. of challan was given on challan nor value of silver was mentioned. Shri Ram Chandra Ram Driver of the Maruti van stated that he was driver of Maruti Van No. DAC -1219 and that 16 pcs. of silver weighing 80 kgs. approx. were recovered by the Customs at the rear door of the van near Jarua, Gandhi Setu. He, further, stated that he used to deliver silver to Shri Mahabir Prasad at Patna city 2 -3 times in a month with silver of Shri Brij Bihari Prasad Prabhu Prasad. The samples were drawn from all the 16 pcs. of silver slabs and were first tested by a certified Goldsmith to find pure silver of 99.48% approx. Again it was tested by the Director of Forensic Science Laboratory, Patna. The Test Report dated 16 -12 -93 ascertained the purity of each sample as 99.93% approx. Regarding the foreign accepted ownership of the silver, they could not produce any legal document for its importain in India. Prabhu Prasad did not appear before Customs Authority. The silver slabs and maruti van used for transportation of the same were seized on reasonable plea under Section 110(1) of the Customs Act. The Show Cause Notice was issued by the Jt. Commissioner of Customs HQs., Patna by its order dated 21 -6 -2000 confiscated 16 pcs. of silver weighing 80.450 kgs. valued at Rs. 5,22,925/ - and also confiscated the Maruti van bearing Registration No. DAC -1219 under Section 115(2) of the Customs Act, 1962. Further, the owner of the van was given an option to redeem the same on payment of fine of Rs. 50,000/ -. A fine of Rs. 1.00 Lakh on Brij Behari Prasad Prabhu Prasad and a fine of Rs. 50,000/ - each was imposed on Baji Rao Bombaywala and Aqbha Rao Bombaywala. A fine of Rs. 10,000.00 was imposed on Driver Ram Chandra Ram and a fine of Rs. 25,000.00 was imposed upon Shri Mahesh Prasad. No appeal was preferred by Ram Chandra and Mahesh Prasad.

(2.) HEARD Shri B.N. Chattopadhyay, Consultant for Appellant and Shri J.R. Madhiam, JDR for Revenue. Mr. Chattopadhyay submits that the appellant is engaged in the business of gold and silver ornaments. They melted the silver and refined it and sold to different parties. The firm maintain the documents of purchase and sale of silver. The documents and records were seized by the Custom authorities. Therefore, the contention of the Department that no proper accounts or documents were maintaining is not proper and correct. The statement of Braj Bihari Prasad under Section 108 was recorded when he was under detention in the Customs House for more than 24 hrs. and was subsequently arrested. A copy of the statement was not supplied to appellant which ought to have been supplied to the appellants. He submits that the silver was seized far away from the border in the vicinity of Patna City. Hence the question of bringing the silver from Nepal could not arise. The shop -cum -residential premises of the appellant was searched twice by the Customs Officials, but nothing incriminating was found from the shop premises or the residential premises of the appellant. He submits that the purity of silver can be achieved to 999 or nearer to that. It itself does not speak of smuggled silver. The copies of the statements of S/Sri Baji Rao and Abha Rao were not furnished alongwith the show cause notice. Therefore, they cannot be relied upon. There was no mention of their statement in the show cause notice. Therefore, no reliance can be placed on such a statement. The learned Commissioner traveled beyond the parameter of the show cause notice. The silver bars had no marks of foreign origin. The marks of Braj Behari Prasad Prabhu Prasad on some of the pieces will prove that the silver bars are of Indian origin. He submits that old and used silver ornaments, articles lumps purchased by the firm were melted and refined by the refiners. The allegation that there had been scratches and tampering of the marking of the silver has no basis. Therefore, passed on assumptions and presumptions. There is no evidence of proof that the goods are of foreign origin. The panchnama and the inventory were subsequently tampered and changed. Therefore, the seizure being vitiated, the proceeding is also not permissible under the laws. It is not proved by the evidence that the scratched and marks were obliterated and in the absence of such scratched, it cannot be said that marks were removed. He, further submits that the Boards circular are binding on the Departmental officers. In a number of cases, the Boards Circular has been relied on by the Honble CEGAT and the silver slabs have been released in as much as total quantity is less than 100 kgs. and each of the pieces was less than 30 kgs. In present case also the quantity being less than 100 kgs., the same are not confiscated. He relied on the following decisions :

(3.) MR . Madhiam learned D.R. supports the impugned order. He, further, submits that the smuggled nature of the silver is proved by the confessional statement made by Mahesh Prasad who is the employee of M/s. Braj Bihari Prasad Prabhu Prasad and the driver of the van Ram Chandra Ram both have admitted that the silver were smuggled from Nepal and the bars were cheezelled and foreign markings were removed. He submits that no legal document was produced by the appellant to prove that the seized silver was of Indian origin or they acquired it legally. Therefore, he submits that the appeals may be dismissed.