TMI Blog1998 (12) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kumar Jain and Driver Shri Kandhari Lal. On being intercepted and desired to search the car by Customs Officers, the appellants stated that there are costlier things being carried in the car and, therefore they should be taken to some safe place. Accordingly the car and its occupants as mentioned above was brought to the Customs Office, Lucknow. The search in the presence of independent witnesses resulted in recovery of 21 Silver pieces of different weights total weighing 61.087 Kg. and net weight 40.175 Kg. valued at Rs. 2,76,203/-, 5 pieces gold Rawa and 3 pcs Gold Rod total weight 413 gms. net weight 309.750 gm. valued at Rs. 1,41,710.60 were also recovered. The goods were recovered from the cavity between the rear seat and the dicky ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld and silver are of foreign origin and was brought into India from Nepal in violation of provisions of section 110 of Customs Act, 1962 and also in violation of Section 13 of FERA, 1973 read with section 11 of Customs Act, 1962. 4.The two appellants were arrested under Section 104. The car was also seized as used for concealing and transporting seized goods as mentioned above and, therefore, was considering liable to confiscation under Section 115 of the Customs Act. 5. On adjudication gold and silver were absolutely confiscated. The car was also absolutely confiscated. A penalty of Rs. 25,000/- each on the two appellants herein and Rs. 1,000/- on the Driver Kandhari Lal was imposed under Section 112. 6.The appellants herein did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence has been brought on record by the departmental officer to prove the goods were smuggled and was, therefore, liable to confiscation. As regards the reference to the absence of the voucher the ld. Advocate submits that no transport voucher was called for as Bahraich is more than 50 K.M. from Indo-Nepal border. In the aforesaid facts and circumstances, ld. Advocate submits that the entire case of the Revenue is based on assumptions and presumptions and there is no evidence whatsoever to support their conclusion that the gold and silver was smuggled from Nepal. He, therefore, submits that the impugned order be set aside and the appeals be allowed with consequential relief to the appellants. 9.Opposing the contentions ld. JDR Shri T.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to come from Bahraich for business purpose to Lucknow carrying the valuable things and their own other properties. He, submits that this stand has been taken by the appellants right from the beginning. He therefore, reiterates itself earlier. 11. I have carefully considered the pleas advanced from both sides. I observe that both gold and silver pieces did not carry any foreign markings. I further observed that both gold and silver are not of that purity or form in which these are smuggled from a foreign country. They have also been detected only near Lucknow and the car was coming from Bahraich. Right from the beginning the appellants have stated that they have started from Bahraich and had brought the gold for sale thereof and then pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board clearly mentions that if the silver bullion is found to be in the form of bars weighing 30 Kilograms (approx.) each, which are being smuggled into the country and also where silver bullion is found to bear foreign markings, the question of seizure may be considered even when the quantity is less than 100 Kg. by an officer not lower in rank than that of Asst. Collector of Customs". None of the ingredients are available in the present case. Lower appellate authorities observation that the said Circular of the Board has no force inasmuch as the Customs Act, 1962 gives powers to the Inspector of Customs to effect the seizure of silver which is liable to confiscation, in my view, is a statement which cannot be countenanced. C.B.E. C. i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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