Decided on May 16,1991



T.P.Nambiar, - (1.) THIS is an appeal filed by the appellant against the orders passed by the learned Additional Collector of Customs (Preventive), I.N.B., Muzaffarpur in Adjudication Order No. 137/CUS/89 dated 20-6-1989. The proceedings in this case have been drawn against the appellant. The facts are that on receipt of information the Customs Officers of Lucknow searched the shop premises of Shri Umesh Chand Agarwal on 12-7-1988 and 12 slabs of silver bullion and ornaments were recovered from his shop. On demand he produced a voucher No. 6 dated 11-7-1988 relating to 105.300 kgs. of silver ornaments. According to the Department, the same weighed 61.840 kgs. Follow-up action was taken. Show cause notice was issued as to why action should not be taken under Sections 11K and 11L of the Customs Act, 1962 and why the silver bullion should not be confiscated under Section 113 of the Customs Act, 1962. The learned Consultant, Shri H.S. Asthana contended before me that in order to apply Section 11K there must be a proof to show that the silver bullion in question was transported by the appellants without a proper voucher from Dumariaganj region of U.P. He contended that there is no such evidence on record to come to that conclusion. He also contended that under Section 11K the appellant can be made liable if the seizure is made from any specified area and the area in question is 300 kilometres away from the border. The learned Junior Departmental Representative, Shri B.B. Sarkar contended before me that the statement of Shri Girish Chand Agarwal that these slabs are already declared before the Income Tax Authorities on 31-3-1987, is baseless as he had declared only 60 kgs. of silver fine before the Income-Tax Authorities. But the silver slabs weighed 61.840 kgs. He also contended that the plea of the appellants that the slabs were brought from Mathura to Lucknow for the manufacture of ornaments also is not acceptable. He also contended that there were some sheets of papers produced by the appellant, on the date of seizure and those loose sheets do not represent the correct account and the appellant was unable to produce any relevant accounts for the possession of these silver slabs in question. He also relied on the observation of the learned Adjudicating Authority in this behalf and reiterated the reasonings after taking me through the impugned order in question. Accordingly, he contended that there are no merits in the appeal as the same is liable to be dismissed.
(2.) I have considered the submissions. Under Section 113(1) of the Customs Act, 1962 any specified goods in relation to which any provisions of Chapter IVB or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened, are liable for confiscation. The Adjudicating Authority has come to the conclusion that the appellant had contravened under Section UK of the Customs Act and therefore, the silver slabs in question are liable to be confiscated. Under Section 11K of the Customs Act, 1962 no specified goods shall be transported from, into or within any specified area or loaded on any animal or conveyance in such area to another specified area unless they are accompanied by a transport voucher prepared by the person owning, possessing, controlling or selling such goods. The learned Adjudicating Authority had stated that the seized silver slabs were transhipped from Dumariaganj region of U.P. and therefore, there is a violation of Section 11K of the Customs Act, 1962. But there is no material before the Adjudicating Authority to come to that conclusion. The Authority had stated that the appellant had declared only 60 kgs. of silver slabs before the IncomeTax Authorities whereas the seized silver is weighing 61.840 kgs. The Authority did not accept the plea of the appellant, that these slabs were brought from Mathura to Lucknow for the manufacture of ornaments. He also stated that the accounts of such transactions were made by the appellant in loose papers which were recovered from their possession at the time of search and seizure. He also stated that these loose sheets of papers were found to be manipulated ones on a follow-up action by the Investigating Officer. Shri Sarkar, learned J.D.R. strongly relied on these facts and stated that in such circumstances the conclusion of the Adjudicating Authority is sustainable. But in my opinion, these circumstances cannot show that the appellant has transported these silver slabs from Dumariaganj region of U.P. There is no evidence in this behalf. Merely because, the loose sheets of papers were not genuine ones it cannot be inferred that these slabs were transported from Dumariaganj region of U.P. without any basis for the same. On the contrary, in the impugned order the learned Additional Collector stated as follows:- "Later on his brother Girish Chandra Agarwal turned up claiming ownership of seized silver slabs and stated that these slabs were manufactured out of old ornaments in a refinery at Mathura. As seized slabs do not bear any mark, this statement is acceptable." A bare reading of this finding by the Adjudicating Authority goes to show that he has accepted the statement of Shri Girish Chand Agarwal that these slabs were manufactured by melting old ornaments at Mathura. If he had accepted that statement it is difficult to understand as to how he could come to the conclusion and that too, without any evidence in this regard, that the seized slabs are transhipped from Dumariaganj region of U.P. Therefore, no contravention of Section UK is made out. The confiscation of the silver slabs under Section 113(1) of the C.A. '62 is not sustainable. The appeal is accordingly allowed and the appellant is entitled for the consequential relief.;

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