TMI Blog2010 (5) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... manner and short order aas Tribunal ventured to do Strictures against CESTAT, Kolkata - Perfunctory manner of exercise of quasi - judicial function by tribunal - CESTAT, Kolkata has been regularly handing down such short, cryptic & perfunctory orders which amount to abdication of judicial duties and functions. - 629-630 of 2007 - - - Dated:- 18-5-2010 - S.K. Katriar and Kishore K. Mandal, JJ. REPRESENTED BY : Shri Rakesh Kumar Singh, CGC, for the Appellant. Shri Birju Prasad, for the Respondent. [Order]. Heard Mr. Rakesh Kumar Singh for the appellants, and Mr. Birju Prasad for the respondents. 2. Both the appeals under the provisions of Section 130 of the Customs Act, 1962 (hereinafter referred to as the Act ), arise out of a common order dated 21-5-2007, passed by the learned Technical Member of Customs, Excise and Service Tax Appellate Tribunal, East Zonal Branch, Kolkatta, in Appeal No. CSM-139, 140/2005, whereby the two appeals preferred by the respondents herein have been allowed, the order of adjudication and confiscation of the gold bars of foreign origin recovered from the possession of one Krishna Kumar, acting as a carrier of Devki Nandan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the order of adjudication, and the appellate order. His submission is that the learned Tribunal has completely failed to appreciate the sweep of Sections 107 and 108 of the Act. He relies on the following two judgments of the Supreme Court : (i) (1997) 1 SCC 508 = 1997 (89) E.L.T. 646 (S.C.) (Surjeet Singh Chhabra v. Union of India) (ii) (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.) [K.I. Pavunny v. Assistant Collector (HQ.), Central Excise Collectorate, Cochin] 5. Learned counsel for the respondents has supported the order of the learned Tribunal. He relies on the judgment of the present Bench handed down on 10-4-2009, whereby the following two appeals, i.e., Miscellaneous Appeal No. 632 of 2007, and Miscellaneous Appeal No. 635 of 2007 (Commissioner of Customs, Patna v. Sri Jaynath Shah), have been dismissed. He further submits that the Department s appeal has been rejected by the Supreme Court by a common order dated 11-10-2010, passed in SLP (C) No. 14151 of 2009, and SLP(C) No. 14152 of 2009. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. The scope, extent, and sweep of Sections 107 and 108 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 135 etc. separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC like Section 120-B etc. are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator s report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve. It is evident on the authoritative pronouncements of the Supreme Court that the confessional statements in terms of Section 108 of the Act is substantive evidence, and can be relied upon to pass orders of confiscation and penalty under the provisions of the Act. 7. The only point for consideration, therefore, in the present case is whether or not the statements made by Krishna Kumar, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold [and manufactures thereof] watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. In other words, the burden of proof was on the respondents herein to prove that the gold bars in question were not smuggled goods as stated hereinabove, adequate opportunity was afforded to them to set up their defence which they failed to avail of. In such a situation, the rigorous procedure prescribed by Section 103 of the Act is completely obviated. 9. We must notice the judgment/order dated 10-4-2009 passed by the present Bench in M.A. No. 632 of 2007, and analogous M.A. No. 635 of 2007, whereby the two appeals were dismissed and relied on by learned counsel for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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