Page 197 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] GAURAV AGARWAL v. COMMISSIONER OF CUSTOMS, TIRUCHIRAPALLI 731

(4) Murarilal Agarwal v. Commissioner of Central Excise, Trichy reported
in 2005 (179) E.L.T. 110 (Tri.-Chennai).
The Learned Counsel relied upon the decision of the Larger Bench
of the Tribunal wherein the applicability of the Board’s circular was
also discussed. The said order was affirmed by the Hon’ble High
Court of Allahabad as reported in 2009 (239) E.L.T. 427 (All.).
(5) Maqsood Alam v. Commissioner of Customs, Lucknow reported in 2015
(324) E.L.T. 162 (Tri. - Del.).
The Learned Counsel stressed that even though the car-
tons/packing has foreign markings this cannot be the criteria to de-
cide whether the goods inside the cartons are of foreign origin.
3. The Learned Authorized Representative for the Revenue Ms. T.
Ushadevi, DC (AR) appeared and argued on behalf of the department. She first
referred to the circular relied upon by the Learned Counsel for the appellant. It is
submitted by her that in the said circular, it is mentioned that if the silver bullion
is found to be in the form of bar weighting 30 kgs and bears foreign markings,
the same can be subject to seizure by officers. In the present case, the silver gran-
ules packed in cartons had foreign markings and, therefore, the circular does not
apply to the appellant. She submitted that the circular does not say that it should
be a single bar weighing 30 kgs with foreign markings. Seizure can be affected if
it weighs 30 kgs. and also if bullion is with foreign markings. In the present case,
the silver was not in the nature of bars but it was in the nature of bullion. Fur-
ther, packing materials also showed that the silver was manufactured in Korea.
She referred to the scanned copy of the packings/carton boxes, to point out that
the name of manufacturer, date of the manufacture, the lot nos. as well as the
purity is mentioned on the packing boxes. Further, the boxes were factory sealed.
The appellant states that he has purchased the boxes from roadside at Chennai
and had handed over the boxes for packing to M/s. Green Dart Courier. This is
false and unbelievable. Further, Shri Raju, Proprietor of M/s. Green Dart Courier
stated that the sender is Shri Muralidhran, M/s. BBT and M/s. PJ and the goods
in parcels were declared as automobile spare parts. The sender or the consignee
is not the appellant herein. The parcel was addressed to Shri Venkatesh and
therefore the claim of the appellant that he send the silver for job work cannot be
true. The statement of Shri Raju read along with the fact that the cartons were
bearing foreign markings along with seal and details of the manufacture would
establish that the silver is of foreign origin. Apart from this, the assayer has certi-
fied that it has 99.8/99.7 % purity. The purity noted on the packings is 99.9%. The
minor difference of 0.1-0.2% per carrot is of no consequence. The quantity men-
tioned on the carton boxes is 10 Kgs., and the very same quantity of silver was
found in polythene bags, kept inside these carton boxes.
3.1 The foreign company mentioned on these carton boxes is a manu-
facturer of silver bullion including granules. She adverted to para 30 of the show
cause notice, wherein, the department has referred to another case, of which the
facts show that, on 2-2-2013, the officers of CPU had intercepted vehicle carrying
15 kgs. Silver of granules each weighing 10 Kgs. The said silver granules were of
identical brand, country of origin and weighing 10 Kgs. In the said case, the pur-
chaser Shri Shiv Sahai of Salem produced the documents including airway bill in
support of the imported silver granules. This would go to show that the said
manufacturer in Korea is engaged in manufacturing and dealing of silver gran-
EXCISE LAW TIMES  1st June 2020  197