Page 195 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] GAURAV AGARWAL v. COMMISSIONER OF CUSTOMS, TIRUCHIRAPALLI 729

original authority further finds that L.S. NIKKO is a reputed manu-
facturer of silver bullion. So on the basis of these materials which
are merely in the nature of suspicion, the authorities below without
making any inquiry finds that the silver seized is of foreign origin
and therefore smuggled.
(3) The aforesaid findings are presumptive and on mere assumption
and presumptions. The authorities below have not given any cre-
dence to the account books like ledgers, vouchers, sales bills besides
confirmation from the sellers produced by the appellant and also
his initial statement to the effect that the silver seized were stock in
trade which was sent from Mathura to Salem for making silver leg
chains. In light of the extensive defence and materials produced by
the appellant to show that the silver in question was part of stock in
trade which was sent for job work, the burden if any under Section
123 stands discharged, and cannot be invoked. Therefore, the find-
ings of the original authority as confirmed by the appellate authori-
ty that original packings had foreign markings, silver granules and
prohibited goods and no evidence has been produced to show it is
not smuggled, differing stands and books of account which cannot
be correlated require to be rejected at the hands of this Hon’ble Tri-
bunal for the reason that burden under Section 123 is rebutable and
enough and more materials have been placed by the appellant to
show that the silver granules under seizure were part of stock in
trade which has been acquired in his business and sent for job work.
(4) The larger question which arises is whether the authorities below
are right in invoking Section 123 of the Customs Act, 1962. This is-
sue which relates to silver bullion of quantities less than 100 kgs.
having no foreign markings and not in the form of 30 Kgs. bar has
been considered by the C.B.E. & C. vide Circular dated 11-6-1990 in
which if seizure is of silver bullion, meets the above criteria, then
Section 123 should not be invoked. Admittedly, in the present case,
the seized quantity is only 60 kgs. and the silver bars do not have
any foreign markings and are not of 30 kgs. bars and therefore the
burden cannot be cast on the appellant in terms of Section 123. The
very same issue has come up for consideration before this Hon’ble
Tribunal in a number of cases of which the following is relied :-
(a) 2001 (131) E.L.T. 198 (Tri. - Chennai)
(b) 2001 (132) E.L.T. 192 (Tri. - Chennai) affirmed in 2009 (238)
E.L.T. A166 (S.C.)
(c) 2005 (191) E.L.T. 1103 (Tri. - Kol.)
(d) 2005 (179) E.L.T. 110 (Tri. - Chennai)
(e) 2009 (239) E.L.T. 427 (Tri. - All.)
(f) 2009 (243) E.L.T. 74 (Tri. - Chennai)
(g) 2001 (133) E.L.T. 668 (Tri. - Kol.) affirmed in 2014 (312) E.L.T.
17 (S.C.)
(h) 2017 (354) E.L.T. 666 (Tri. - Chennai).
(5) Mere lustre and markings on the packings cannot be a criteria to
hold that the seized silver is of foreign origin and smuggled. The
EXCISE LAW TIMES  1st June 2020  195