Page 198 - ELT_1st June 2020_VOL 372_Part 5th

732 EXCISE LAW TIMES [ Vol. 372

ules which are imported to India. The packing/carton boxes seized in the present
case, should therefore be considered as foreign markings of the silver granules.
The circular, therefore, does not apply.
3.2 Further the appellants have not been able to show that they have
obtained the silver by legitimate import. Though they have produced invoices of
several silver dealers, the department had obtained letters from such silver deal-
ers, wherein, it was stated that they have not supplied granules but sold only
silver bars. The said letters are part of the relied upon documents. The judgments
relied by Learned Counsel are not applicable to the facts of the present case. The
decision of Maqsood Alam (supra) will not apply to the facts of the case since the
goods involved therein is betel nuts and not notified goods under the Customs
Act. The department has established that the goods seized are illegally imported
and not subject to Customs duty and, therefore, the confiscation and penalty im-
posed are legal and proper.
4. Heard both sides.
5. The Learned Counsel for the appellant has placed the arguments
mainly relying upon the Circular of the Board dated 11-6-1990. For better appre-
ciation, the said Circular is reproduced as under :-
“Silver bullion (excluding silver coins, jewelry and utensils) have since been
notified under Section 123 of the Customs Act, 1962 vide Notification No.
28 (Customs), dated 8-6-1990 thereby shifting the burden of proving wheth-
er the seized silver is smuggled or not, by the persons from whom silver
bullion is seized. In order to prevent the possibility of 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 invoked against persons, who are found
to be in possession of silver bullion of less than hundred kilograms. How-
ever, if the silver bullion is found to be the form of bars weighing 30 kilo-
grams (approx.), which are being smuggled into the country and also
where silver bullion is found to bear foreign markings, the question of sei-
zure may be considered even when the quantity is less than hundred kilo-
grams by an officer not lower in rank that than 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 No. 29 (Customs), dated 8th
June, 1990 has been issued removing silver bullion and coins from the pur-
view of Chapter IVB of the Customs Act, 1962. Detailed instructions are be-
ing issued separately.”
From the above circular, it is seen that the Govt. has made clear that the provi-
sions of Section 123 of Customs Act, 1962 should not be invoked, when persons
are found possession of silver bullion less than 100 kgs. Further that when silver
bullion is in the form of bars of 30 kgs. each and also silver bullion which bear
foreign markings even though less than 100 kgs. can be subject to seizure for
which proceedings can be initiated.
6. In the present case, the silver is not in the nature of bars or coins. It is
in the form of silver granules. As per the circular, when silver bullion is found in
possession with foreign markings the same can be subject to seizure, if it is less
than 100 kgs. In the present case, the quantity of silver bullion is 60 kgs. Then the
question arises, whether silver granules would fall within the definition of silver
bullion. The Commissioner (Appeals) in para 8 of his order has explained the
meaning of bullion as seen in Wikipedia. Ordinary meaning of bullion given as
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