TMI Blog2005 (6) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... rent silversmiths or persons dealing in silver ornaments. In course of his normal business the appellant sent his two employees Sri Radheshyam Prasad and Shri Shankar Shaw with 11 8 pieces of silver weighing 10.500 kgs. and 8.800 kgs. respectively to Banaras. Challans were also sent along with the silver. On the way to Banaras both the employees were intercepted by the Customs Officials. Sri Shankar Shaw was released and the total silver was shown to have seized from Sri Radheshyam Prasad. The silver weighing 19.488 kgs. valued at Rs. 1,26,672.00 was seized by the Inspector of Customs (Prev.). The statement was recorded from Sri Radheshyam Prasad wherein he stated that the silver under seizure was given to him by Sri Ganesh Prasad , the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100 kgs., they are not to be considered to be covered under the provisions of Section-123 of the Customs Act, 1962. In that case onus is on the department to prove that the goods have been smuggled in India. The Department fails to discharge the burden. Therefore, he submits that the silver is not liable to be confiscated. He relies on the following decisions : (i) 2005 (179) E.L.T. 110 (Tribunal) (ii) 2002 (142) E.L.T. 342 (Tribunal-L.B) (iii) 2002 (140) E.L.T. 233 (T) = 2001 (47) RLT 90 (CEGAT) (iv) 2001 (43) RLT 224 (CEGAT) (sic) (v) 2001 (132) E.L.T. 192 (T) = 2001 (46) RLT 560 (CEGAT) He, further, submits that there was no bona fide reasons to believe that the goods were of smuggled nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 100 kgs. However, if the silver bullion is found to be in the form of bars weighing 30 kgs. (appropriately) 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 kgs. by an officer not lower in rank than that of an Assistant Collector of Customs". The Larger Bench in the case of Shambhu Nath v. Commr. of Customs, Lucknow Reported in 2002 (142) E.L.T. 342 (Tri.-LB) has held as under: "If any person is aggrieved by the seizure or confiscation of smaller portion, it was open to contest the strength of the above circular. This circular issued by CBEC are binding on the Department". This has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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