Vikash Kumar Agrawa Vs Commissioner of Customs (Preventive) (CESTAT Kolkata)
CESTAT Kolkata held that Silver Granules are not notified item under section 123 of the Customs Act and revenue has not brought in any evidence to established that Silver Granules are smuggled in nature. Hence, confiscation set aside and appeal is allowed.
Facts- Customs Appeal has been filed by Shri Vikash Kumar Agarwal against the Order-in-Appeal dated 26.06.2025inter alia seeking release of 160 kgs. of the Silver Granules, confiscated under clauses (b) and (d) of Section 111 of the Customs Act, 1962 read with Sub-section (1) of Section 120 of the said Act. The appellant no.1 also sought waiver of the penalties of Rs.50,000/- each imposed under Sections 112(a), 112(b) and 114AA ibid., totally amounting to Rs.1,50,000/-.
Conclusion- Held that Silver bullion is notified under Section 123 of the Customs Act, 1962 vide Notification No. 103/2016-Customs (NT) dated 25.07.2016 and only silver bullion is notified for the purpose of the Section. Thus, it is seen that the ‘Silver Granules’ in question is not a Notified item under Section 123 of the Customs Act, 1962. Therefore, we are of the view that the responsibility is on the Revenue to prove that the item is of foreign make and the same has been smuggled. In the present case, we observe that the Revenue has not brought in any evidence to establish that the ‘Silver Granules’ in question were smuggled in nature. We also take note of the fact that there is no foreign inscription on the seized silver granules. Merely on suspicion it was held that that the same have been smuggled from Nepal. The Revenue cannot presume that such ‘Silver Granules’ are smuggled in nature without any corroborative evidence in support thereto. Thus, we hold that the Revenue cannot shift their responsibility and ask the appellants to prove that the ‘Silver Granules’ are not smuggled in nature. Thus, we are of the considered view that the appellants were not required to produce import documents at the place of seizure of the impugned goods.
