Per Shri T.P. Nambiar :

These are eight appeals filed against the impugned order of the Collector of Customs in order No. 33/91 dt. 8.2.93. In terms of that order, 49 Silver slabs of foreign origin valuing Rs. 15 lakhs weighing 215.2 Kgs were absolutely confiscated. The Maruthi Car in which the same was carried was also absolutely confiscated. Indian Currency of Rs. 40,000/- being the sale proceeds of the smuggled silver is also absolutely confiscated and various penalties are imposed on the appellants.

This case pertains to the seizure of 49 Silver slabs of foreign origin from the Maruthi Car on 13.8.91. The statements of the appellants were also taken. The statements of the appellants goes to show that these were foreign silver melted by them and thereafter these silver bars were being transported by concealing them in the Maruthi car. After the statement was taken and after due investigation, the Show Cause Notice was issued. The appellants had retracted their statements after about 8 days of giving their initial statements. After granting a personal hearing to the appellants, the impugned order was passed.

2. The Ld. advocate Shri Lakshmi Narayanan appearing for the appellants pointed out that provisions of section 123 is not applicable to the facts of this case. He pointed out that there was a Mint Certificate showing that the purity of the silver was below 97%. He also pointed out that the original statements given by the appellants were retracted by them. It was pointed out that the statements were obtained while they were in custody and the same were not voluntary statements. He also pointed out that the evidence of the co-accused as well as the accused is insufficient to pin the liability on the appellants. It was also pointed out that there was no reasonable belief for seizing the silver in question. He, therefore, pointed out that invocation of section 123 of the Customs Act, is not warranted in the facts of the case.

3. The Ld. SDR Shri R. Victor Thiagaraj, on the other hand, drew our attention to the several statements and pointed out that the statements revealed that foreign silver was used and by melting that foreign silver, present silver was obtained. He pointed out that the fact that the Mint certificate that found the purity as less than 0.999% will not come to the aid of the appellants in view of the fact that their statements established that the present silver is melted out of the foreign silver. He also pointed out that at the time of seizure a goldsmith was called who tested the silver and found the purity at 9.999%. He pointed out that this silver being of high purity and not being covered by any valid documents and the same being hidden in a particular pouch of the car, there were circumstances for the officers to entertain a reasonable belief that these are smuggled. Therefore, invocation of section 123 is perfectly justified and the appellants have not discharged this burden cast on them to prove that these are not smuggled in nature.

4. He, therefore, pointed out that the confiscation is in order. It was also pointed out that since the Maruthi Car was used for concealing and transporting the smuggled silver, same liable for confiscation under section 115 (2) of the Customs Act. He also pointed out that the statement of Shri Raju Gundesh clearly goes to show that this amount of Rs. 40,000/- is the sale proceeds of smuggled silver and therefore the same was correctly confiscated under section 121 of the Customs Act. He also pointed out that in view of the fact that these appellants are concerned persons in carrying all these smuggled silver as well as the concerned in the concealing of the same, they were imposed with the penalty.

5. In a rejoinder, the Ld. advocate stated that at this point of time, silver is freely importable in India by payment of duty in this regard and a passenger can bring 100 Kgs of silver. Therefore, it is not absolutely prohibited item and in these circumstances, even it is h