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TMI Blog2021 (1) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... atement dated 11.03.1998 to be true. Furthermore, the appellant was present when the search and seizure operations were conducted. The statement of the other two persons, who were employed by the appellant clearly implicate the appellant with regard to the attempt to export prohibited items. Furthermore, it has been established that the appellant was aware of the fact that sandalwood is a prohibited item for export - there is no procedural error committed by the Adjudicating Authority and the Adjudicating Authority, after analysing the statement recorded from the independent witnesses, has rightly held that the appellant is guilty. Considering the facts and circumstances of the present case, more particularly, when the present case arises under the provisions of the Act, the appellant cannot place reliance on the decision in the case of CAPT. M. PAUL ANTHONY VERSUS BHARAT GOLD MINES LTD. ANR. [ 1999 (3) TMI 625 - SUPREME COURT] which was the matter concerning the service condition of the appellant therein. The said decision is wholly inapplicable to the case on hand. The Tribunal, which is the last fact finding forum, has re-appreciated the factual matrix and rendered a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the co-accused were discharged from all charges and in the adjudication proceedings? 3.Heard Mr.A.Thiyagarajan, learned Senior Counsel for Mr.S.Ramesh Kumar, learned counsel for the appellant/assessee and Mr.T.Pramod Kumar Chopda, learned Senior Standing Counsel for the 1st respondent/Revenue. 4.The appellant has filed this appeal challenging the order passed by the Tribunal, allowing the appeal filed by the appellant partly and reducing the penalty imposed under Section 114 of the Act on the appellant from ₹ 25 Lakhs to ₹ 15 Lakhs. 5.The officers of the Customs Department conducted search operations on 10.03.1998, in a godown at No.111, Ettaiyapuram Road, Tuticorin, and found cartons stacked in the Southern side of the godown. There were three persons present in the godown at the time of the search. One of the persons identified himself as Nathan, hailing from Trichy, and he had employed two other persons, viz., Selvaraj and Kalkan of Tuticorin for packing the goods. The said Nathan stated that 476 cartons, which were in the godown, contain Mangalore Roofing Tiles intended for export to Singapore. The officers opened the cartons and found sandalwoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nai and when he contacted Maideen, he informed the appellant that illicit export can be arranged through one Janarthanan @ Janar at Tuticorin through his relative Mohan and made arrangement to export and the appellant met Janar on 02.03.1998 and requested to arrange for a godown and he did so through his friend Hari and that Hari did not know anything about the sandalwood and the sandalwood belong to Dhanapal and he did not know from where and whom, Dhanapal got sandalwood and Dhanapal told him that the sandalwood was to be exported to R.N.Enterprises at Singapore and hence, the marking on the cartons was R.N.E and that he was using a fictitious name as Nathan and the seized visiting card bearing the name of Rahuman Sait, Managing Partner of Badhusha Tanning Company, belongs to him and the chit, which was seized from the room in the lodging house, was in his own handwriting with the fictitious name Nathan at No.15, Mohammed Road, Gandhi Market, Trichirappalli. On the backside of the chit, the seizes of cartons used for packing of sandalwood was written and blank letterheads were made by him to Dhanapal and he was asked by Dhanapal to put marking on the cardboard boxes, as cartons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was found in the godown while in the process of concealing the sandalwood under roofing tiles and that there is material to show that he was in constant contact with Dhanapal, Maideen and Janar and on the appellant's advice only, the shipping bill was filed by Janar and held that the retraction made by the appellant, vide his letters are only an afterthought and accordingly, rejected the same and levied penalty, vide order dated 29.04.1999. 10.Aggrieved by the same, the appellant filed appeal before the Tribunal. Parallelly, prosecution was initiated against the appellant and others in C.C.No.2 of 2003 on the file of the Additional Chief Judicial Magistrate and the appellant was the fifth accused in the criminal case. The appellant and others, against whom penalty was imposed by the Original Authority, vide order dated 29.04.1999, filed stay petitions before the Tribunal in the pending appeal. The Tribunal, by interim order dated 05.10.1999, directed the appellant to pre-deposit a sum of ₹ 10 Lakhs. The appeal filed by Janar was taken up by the Tribunal and an order was passed on 29.04.2005 allowing the appeal and setting aside the penalty levied on the said Jana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Act and the order passed by the Tribunal imposing a penalty of ₹ 15,00,000/- on the appellant is arbitrary and unreasonable. In support of his contention, the learned Senior Counsel referred to the decision of the Hon'ble Supreme Court in Collector of Customs, Madras Ors. vs. D.Bhoormall [(1974) 2 SCC 544], with regard to the burden of proof while taking action to confiscate goods under the provisions of the Act. 14.1.Reliance was placed on the decision of the Hon'ble Supreme Court in K.T.M.S.Mohd. Anr. vs. Union of India [(1992) 3 SCC 178], with regard to the effect of the statement, which was initially recorded from the appellant and subsequently, retracted and as to how the authority failed to take note of the retraction of the appellant, which was bonafide. 14.2.Reliance was placed on the decision in the case of K.I.Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin [(1997) 3 SCC 721], to explain the effect of a statement recorded under Section 108 of the Customs Act. 14.3.Relying upon the decision in the case of Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. Anr. [ ( 1999) 3 SCC 679], it is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 23.05.2008, was set aside in an appeal filed by the Department before the Madurai Bench of this Court vide order dated 19.10.2019, in Crl.A.(MD) Nos.58 and 59 of 2009. 18.Further, it is submitted that the Adjudicating Authority had afforded effective opportunity to the appellant to put forth his case and has passed a very detailed order taking note of all the facts and as such, no substantial question of law arises for consideration in this appeal especially when, the Tribunal re-appreciated the facts and confirmed the order passed by the Adjudicating Authority. With the above submissions, the learned Senior Standing Counsel prayed for dismissal of the appeal. 19.The first aspect, which we need to consider is whether the Adjudicating Authority was right in rejecting the retraction made by the appellant, vide letters dated 01.06.1998 and 01.07.1998 and holding the appellant guilty based on the statement given by the appellant dated 11.03.1998, and the other statements recorded from the other accused. 20.The Hon'ble Supreme Court in K.T.M.S.Mohd., while dealing with the statement recorded under Section 40 of the Foreign Exchange Regulation Act, 1973 (FERA), poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conviction of the accused. Practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession. Further, it was held that it is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confession statement. The Court is required to examine whether the confessional statement was voluntary, in other words, whether it was not obtained under threat, duress or promise and if the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true and if the Court, on examination of the evidence, finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require the Court should seek assurance getting corroboration from other evidence adduced by the prosecution. 22.In the preamble portion of this judgment, we had elaborately referred to the statement given by the appellant on 11.03.1998. The Adjudicating Authority n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Madurai Bench of this Court in Crl.A.(MD) Nos.58 and 59 of 2009, dated 19.10.2019. In any event, the Adjudicating Authority is empowered to independently proceed and there is no requirement that he has to await the outcome of the criminal proceedings. 25.Considering the facts and circumstances of the present case, more particularly, when the present case arises under the provisions of the Act, the appellant cannot place reliance on the decision in the case of Capt.M.Paul Anthony, which was the matter concerning the service condition of the appellant therein. The said decision is wholly inapplicable to the case on hand. The Tribunal, which is the last fact finding forum, has re-appreciated the factual matrix and rendered a finding that on the date when the officers of the Department conducted search operations in the godown at Tuticorin, the appellant was present and the cartons, which were lying in the godown, when opened, were found to contain sandalwood concealed along with Mangalore Roofing Tiles. Further, the admissibility of the statement recorded under Section 108 of the Act from the appellant on 11.03.1998, was considered by the Tribunal and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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