Per P.G. Chacko : In these five appeals, the substantive issue is whether the silver bars/pieces seized from the parties by the Customs authorities under the bona fide belief that the goods were liable to confiscation under Section 111 (d) of the Customs Act are legally liable to confiscation or not. Appeal Nos. 121-123/98 are by the department, challenging the order of the Commissioner (Appeals) holding the goods not to be liable to be confiscated. In the remaining two appeals (Nos. 62 63/2002) the appellants are the parties from whom silver bars/pieces were seized and eventually confiscated under an order of the Dy. Commissioner of Customs, which was subsequently confirmed by the Commissioner (Appeals).

2. Examined the records and heard both the sides, in each of the appeals. The grievance of the department in their appeals is that the order of the Commissioner (Appeals) is not a speaking order inasmuch as it does not disclose the reasons for holding that the silver bars/pieces were duly accounted for and constituted lawful acquisition of the parties concerned. In the remaining two appeals, it is a common ground that, in terms of Central Government Circular No. 394/233/88-Cus. (As) dated 11.06.90, the silver bars/pieces weighing less than 30 kgs. each ought not to have been seized for confiscation.

3. In the Revenue's appeals, the Ld. Counsel for the respondents submits that the benefit of the above Circular is available to them in the facts of the case. In these cases also, the silver bars/pieces did not attract the provisions of Section 123 of the Customs Act by virtue of the Circular, which had clarified that where silver bullion was found to be in the form of bar weighing below 30 kgs., Section 123 ibid should not be invoked for seizure and confiscation. In these appeals, Ld. DR reiterates the grounds raised in the memoranda of appeals. In their appeals, the Counsel for the appellants submits that, in the impugned order, Ld. Commissioner (Appeals) has recorded a clear finding in their favour but did not grant the benefit thereof to them. The finding referred to by the Ld. Counsel is contained in the last sentence of the fifth para of the impugned order, which reads as under:

"Therefore, the appellant's contention that the seizure, in the instant case, is in violation of the circular issued by the Government of India, is correct". Referring to the sixth para of the impugned order, the Ld. Counsel submits that the Commissioner (Appeals) has in this para misconstrued the circular and invoked Section 123 of the Customs Act by referring to the Chapter IV B of the Act, which was relevant to export cases only.''

4. We have examined the grounds of these appeals and the submissions made by both sides.

Appeal Nos. C/62/02 C/63/02

As already noted, these appeals are against an order of the Commissioner (Appeals) containing a clear finding, which we have already extracted. That finding is to the effect that the seizure of the silver bars/pieces in this case was in violation of the Govt. Circular dated 11.06.90. The Ld. Commissioner (Appeals) has, however, attempted to distinguish the appellant's case in his own manner as discernible from the sixth para of the impugned order, which reads as under:

"However, notwithstanding this, the fact remains that silver is an item notified under Section 123 of Customs Act, 1962, at the relevant time and was subject to the provisions of Chapter IV B of the Customs Act, 1962, with regard to its acquisition, possession, transport, etc. The appellant claims that the seizure is invalid in view of the circular but that will not render the seizure invalid, as per the provisions of the Customs Act, 1962. Of course, it has to be shown that the officers had reasonable belief with regard to the smuggled nature of the silver bars for seizing them".

5. It appears from the above para of the impugned order that the Ld. Commissioner (Appeals) has chosen to invoke the provisions of Section 123 of the Customs Act