Judgment:
Jyoti Balasundaram,
Vide the impugned order the Commissioner (Appeals) has upheld the absolute confiscation of 30.175 Kgs. Of silver seized from the appellant herein while ordering release of 20 Kgs. of silver also so seized and upheld penalty of Rs. 10,000/- imposed upon him by the adjudicating authority.
2. We have heard both sides. We find that the Ld. Counsel for the appellant is correct in his submission that since the confiscated silver was less than 100 Kgs. and was in the form of bars not weighing more than 30 Kgs. each, the seizure itself should not have taken place, in the light of CBEC Circular F. No. 394/233/88-CUS (AS) dated 11.06.1990 which reads as under: Silver Bullion (excluding silver coins, jewellery and utensils) have since been notified under section 123 of the Customs Act 1962 vide Notification No. 28 (Customs) dated 8.6.90, thereby shifting the burden of proving whether the seized silver is smuggled or not on the persons from who silver bullion is seized. In order to prevent the possibility if undue harassment to law abiding persons possessing small quantities of silver bullion of Indian origin it has been decided that normally the provisions of the Section 123 of Customs Act, 1962 should not be involved against persons who are found to be in possession of silver bullion of less than hundred kilograms. However, if the silver bullion is found to be in the form of Bars weighing 30 kgs (approximately) 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 hundred kgs. by an officer not lower in rank than that of an Assistant Collector of Customs. Also keeping in view that now there is no incentive for the illegal export of silver bullion and coins Notification NP 29 (Customs) dated 8th June 1990 has been issued removing silver bullion and coins from the purview of chapter IV-B of the Customs Act 1962. Therefore, without going into the question as to whether explanation can be given by the appellant for possession of 30.157 Kgs. of silver, applying the ratio of the decision cited supra, we set aside the confiscation and penalty and allow the appeal.