Page 196 - ELT_1st June 2020_VOL 372_Part 5th

730 EXCISE LAW TIMES [ Vol. 372

appellant relies on judgment of the Hon’ble Tribunal in 2015 (324)
E.L.T. 162 (Tri.). Thus, in light of the afforested facts and the conten-
tions raised by the appellant, including the ratio of the case laws cit-
ed above, it has to be held that the seized silver bars are not confis-
cable.
(6) The appellant therefore prays that this Hon’ble Tribunal may be
pleased to accept the appeal by allowing the same setting aside the
order of confiscation.
(7) The main argument put forth by the Learned Counsel is that the
seizure of the silver is against the Board Circular, dated 11-6-1990.
According to him, on 8-6-1990 silver was notified under Section 123
of the Customs Act, 1962. The Board has issued circular stating that
the seizure cannot be effected of silver which is less than 100 kgs. So
also, only such silver, which has foreign markings, when the said
quantity is of 30 kgs. in nature of bar. The present silver seized by
the department is in the nature of granules, which is less than 100
kgs. It does not bear any foreign markings. The markings seen on
the packings/cartons has been explained by the appellant Shri
Gaurav Agarwal. He had purchased the said cartons/packings from
street in Chennai and used the same for packing and sending the
silver for job work. The silver granules was purchased by the appel-
lant from various silver dealers in Mathura. The bills showing the
purchase from the said silver dealers have also been produced. The
books of account of the appellants show the purchases, which was
also shown before the authorities. None of the documents was giv-
en any weightage by the department.
2.2 The Learned Counsel relied upon various judgments as discussed
below :
(1) N.S. Allaudeen v. Commissioner of Customs, Trichy reported in 2001
(131) E.L.T. 198 (Tri. - Chennai).
The Learned Counsel submitted that the fact of the case is that the
silver seized was in the nature of bars and though had foreign
markings weighing less than 30 kgs. The Tribunal had applied the
Board’s Circular and held that confiscation and seizure cannot sus-
tain.
(2) K.N. Easwaran v. Commissioner of Customs, Trichy reported in 2001
(132) E.L.T. 192 (Tri. - Chennai)
This case was relied upon by the Learned Counsel to argue that
when seizure of silver was 69 kgs. and in the nature of bars, which
did not have foreign markings, the Tribunal held Board’s Circular
would apply and confiscation set aside. The said decision was ac-
cepted by the Hon’ble High Court of Madras and the appeal filed
by the department was withdrawn.
(3) Ganesh Prosad v. Commissioner of Customs, Patna reported in 2009
(191) E.L.T. 1103 (Tri. - Kolkata).
The Learned Counsel relied upon the above decision to argue that
the circular was given effect to when the seizure of the silver was
less than 100 kgs. without foreign markings.
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