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2000 (1) TMI 430

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..... ling the gold and silver bars were also confiscated under section 119 of the Customs Act, 1962. A penalty of Rs. 7.5 lacs has been imposed on the appellants under section 112 of the Act. The appellant is not challenging the absolute confiscation of 35 gold bars and restricting his claim for release of 111 silver bars on the ground that the same was notified item during the relevant period and in terms of Section 125 of the Act, the Commissioner ought to have granted him an option to get the goods released on payment of redemption fine, which has not been given and hence, the order of absolute confiscation is a nullity. Besides this ground, the appellant has also taken a ground that seized silver was not of a foreign origin and there was no .....

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..... sing the notified goods to intimate the place of storage to the Proper Officer, yet the violation of which does not grant any power to the authority to absolutely confiscate the goods. In terms of Section 123 of the Act, the goods are required to be released on imposing of fine. 2. Arguing for the appellants, the learned advocate submits that it is a settled law that a presumption for the goods being smuggled one should be on a strong basis and on a certain evidence in the form of foreign markings or any admission of the parties. It is his submission that in the present case, the Revenue has not discharged their initial burden of the silver being a smuggled one and the party has not admitted that he has dealt with smuggled item except he .....

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..... was set aside and an option to redeem the silver was granted to the appellants and silver of 3.120 kgs. was directed to be released on payment of fine of Rs. 7,000/- and penalty was reduced to Rs. 2,500/-. He submits that mere fact that silver was concealed in the pit is not sufficient to hold that the same is of a smuggled nature and in this context, he relies on the judgment of the Tribunal in the case of Anil Kumar Jain Piyush Kumar Jain v. CC as reported in 1999 (97) E.L.T. 460 (T), wherein it had been held that merely because the goods were found in secret cavity of car by itself does not prove that the goods are of a smuggled character. He submits that an option of redemption of a notified item is required to be granted in terms of .....

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..... ssession of the notified item and hence there is a clear contravention admittedly and the order of absolute confiscation is justified including imposition of penalty which is very nominal in the present case. He seeks for upholding the order impugned. 4. On a careful consideration of the submissions and on a perusal of the records and Mahazar, we notice that there is no entry in the Mahazar that the silver carried any foreign markings and there is no other evidence other than the statement of the appellant in the present case to draw any conclusion about the smuggled nature of the silver in question. The appellant has not contested the seizure of gold bars and hence it is not necessary for us to pass any order except to confirm the issue .....

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..... ign origin and also in the absence of any foreign markings on the silver in terms of the Mahazar report prepared on the date of seizure, it is difficult to come to a conclusion that the seized silver is of foreign origin. The Commissioner also in his order merely has drawn presumption that silver bars are not manufactured in India and they are manufactured in abroad and some with foreign markings and some may not be having foreign markings. It is not known as to how the Commissioner had come to the conclusion that the silver in question had foreign markings and his finding itself has indicated that it is presumptive in nature. Therefore, the benefit of doubt pertaining to silver being foreign origin is required to be given to the appellants .....

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..... ortunity of hearing. The penalty imposed is a consolidated one for both the seized gold and silver and the same is required to be re-adjudicated. However, the pre-deposit of Rs. 3.00 lacs shall remain with the department, till such time the appeal is re-adjudicated. The appeal is disposed of accordingly. 5. At this stage, the learned counsel seeks direction to the Commissioner not to dispose of the silver in question, till such time the appeal is re-adjudicated and also seeks for time limit. 6. Heard learned D.R. 7. Considered. The Commissioner is directed not to dispose of the said silver but take up the matter expeditiously within a period of four months from the date of receipt of this order and decide the case on the aspect pertai .....

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