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2006 (4) TMI 177 - CALCUTTA HIGH COURTGold Smuggling - Evidence - authenticity, genuineness and voluntary nature of confessional statement recorded immediately after seizure u/s 108 - belated retraction of confessional statements - burden of proof u/s 123 - HELD THAT:- We are of opinion that the alleged statements of the respondents recorded u/s 108 of the Customs Act were not voluntary. The retracted confessional statements in the present case are acceptable as it appears from the facts and circumstances that the alleged original statement u/s 108 of the Customs Act were obtained under threat and coercion and without following the legal procedures which was even admitted by the Commissioner (Appeals), and the Tribunal very rightly expressed doubt on voluntary character of the statements. In the present case, the preponderance of probabilities are not in favour of the Customs Authorities, that is, the appellants and, in quasi-judicial proceedings mathematical precision is not required but in the present case the appellant hopelessly failed to establish their prima facie case that the lumps of gold seized from the respondents were of foreign origin or smuggled by them into India. Relating to the shifting of burden of proof in view of Section 123 of the Customs Act, we have already given the answer through our discussion made above that, the respondents were able to discharge to their onus and the appellant failed to establish that the gold seized from respondents were smuggled into India. We are clearly of opinion that the Tribunal i.e. CEGAT rightly observed that it is well-settled that sufficiency of evidence does not raise any question of law and rightly rejected the application for making reference to this Court. Thus, we find no merit in the appeal. There is no substantial question of law involved in the present appeal which requires reference to this Court for giving answer to the points of reference. The appeal accordingly fails and is dismissed. We make it clear that there will be no order as to costs.
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