TMI Blog1990 (12) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... rsement made in the shipping bill. The S.I.B. Officers on some information later on re-examined the packages and found the goods to be jute gunny rags and not grey knitted polyester fabrics as declared in the shipping bill. The appellant, the clearing agent, informed that one Shri T.K. Subramaniam who had signed all the export documents as partner of the export-firm was staying at Hotel Casino, Cochin and the authorities traced the said Subramaniam for interrogation. The appellant also handed over certain documents in his possession to the officers. The said Subramaniam was examined by the Customs authorities on 23-6-1987,23-6-1987,4-7-1987 and 6-7-1987; two statements were recorded from the said Subramaniam on 23-6-1987 and two further statements were recorded on the other two dates referred to above. Subramaniam gave an inculpatory statement confessing to misdeclaration of the goods but did not in any way implicate the appellant and exculpated him. The authorities took the appellant to custody on 22-6-1987 at midnight and recorded a statement from him on 23-6-1987 which was exculpatory. Thereafter on 25-6-1987 at 1 p.m. they recorded a second statement of the appellant which is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be admissible in law. Those statements also were retracted on 9-7-1987 and except the retracted statement, there is absolutely no evidence at all on record to connect the appellant with the commission of any offence as an abettor in regard to the goods in question. The Ld. Counsel also placed reliance on the ratio of the ruling of the Bench of this Tribunal in the case of K.I. Pavunni v. Collr. of Cus. and C. Ex., Cochin dated 27-5-1985 reported in 1985 (22) E.L.T. 913 (Tri.), and also to the ratio of the ruling of the Supreme Court in the case of Shankaraiah v. State of Rajasthan , (reported in AIR 1978 Supreme Court Cases page 435) which ruling has been referred to by the Bench of the Tribunal in the case cited supra. The Ld. Counsel further urged that the proceedings being penal in nature the appellant would at any rate be entitled to the benefit of doubt arising in the facts and circumstances of the case and pleaded that the appellant may be exonerated of the charge. Finally the Ld. Counsel made a fervent plea that even the Custom House Clearing Agent licence of the appellant was suspended on 30-6-1987 and the appellant has been out of business for the past about 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y those persons. This is a very important point because if really the appellant had been an abettor, Shri Subramaniam should have implicated him atleast in one of the four statements recorded by the authorities on different dates. Coming to the appellant at the outset I should like to take note of the fact that it is he who informed the Customs authorities about the place where Shri Subramaniam, the partner of the exporter-firm, was residing. Apart from it, the appellant also handed over all the documents available with him to the Customs. I should also take note of the fact that the goods were initially examined before export as per law by the Customs Officers themselves and after due examination they gave let export order as evidenced by the endorsement in the shipping bill. The endorsement of the authorities before clearing the goods for export on 22-6-1987 reads as under :- Opened, Inspd. and C/weighed S/3 Bales Inspd. Marks Goods : Grey knitted polyester fabrics in each. C/W Average As (certained) Gr .weight of 3 bales 376.00 Declared weight (of three bales) 378.00 Diffce(+)2.00 Excess weight within 1% Sd. x x x x (examiner) countersig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the appellant were voluntary. I should confess I find it difficult to disabuse my mind of a conviction that the subsequent statements could not have been voluntary and should have come into existence when the appellant was in the continued custody of the authorities. It is a well-established proposition of law that a confessional statement, before becoming admissible, should satisfy two tests namely, it should be voluntary and true; if it is not voluntary, even if it is true, the same will have to be rejected in entirety. The Bench of this Tribunal in the case of K.I. Pavunni referred to above has had occasion to refer to the rulings of the Supreme Court before considering the acceptability of a confessional statement. The Tribunal has observed in the said rulling as under :- But one should remind oneself of the exiomatic proposition of law that even if truth were to be extracted by blandishment, coax, coercion, threat or in ducement by a person in authority, the same would be hit by Sec. 24 of the Evidence Act and would cease to be voluntary and in such a situation there is no alternative to a court of law except to reject the same brevi menu. References may usefully b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter unless there is clear evidence, either direct or circumstantial, to warrant such conclusion. Mere negligence or want of diligence on the part of the Custom House Clearing Agent or the Customs Officers in clearing the goods would not ipso facto render their act culpable inviting penal consequences in law. The fact that the purchase orders of the importer were typed in the office of the appellant, though might engender a suspicion, would not conclusively prove that the appellant was on that score privy to the commission of an offence because the order placed by the supplier would only indicate the requirements of the importer. Therefore, on consideration of the entire evidence on record and having regard to the facts and circumstances of the case I am inclined to think that in the interest of justice the appellant would at least be entitled to the benefit of doubt inasmuch as the proceedings are penal in nature and by giving the appellant the benefit of doubt I exonerate him of the charge, set aside the penalty and allow the appeal. I also take note of the fact that the appellant has never been involved in any offence of any kind under the Act in the past and the family has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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