TMI Blog1993 (6) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... amined besides, there was contradiction in the deposition of the seizing officer during the cross-examination. 4. A show cause notice of even number dated 12th December, 1991 by the Government proposing to set aside the order-in-appeal was issued to respondents inter alia on the following grounds : - (a) The Collector (Appeals) appeared to have erred by placing excessive reliance upon certain minor contradiction in record (such as date of certificate given by the goldsmith, on certain parts of his statement in cross-examination by Shri Surinder Nath, Superintendent, Customs, but which were later corrected by him) to overlook and negate the substantial evidence including Panchnama and the voluntary statement of the respondent. (b) Collector (Appeals) seemed to have erroneously applied the test of proof beyond reasonable doubt vis-a-vis that of 'preponderance of probability' in departmental proceedings and thus committed a fundamental mistake in appreciation of evidence. (c) Merely because the Deputy Collector did not (if at all necessary) examine the expert witness to verify the date on which the test report was signed, the Collector (Appeals) seems to have erroneously reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Shri Harbans Singh, Advocate, appeared for the hearing on 18-6-1992 when besides reiterating the contents of the reply to the show cause notice they averred that their submissions were on two fronts i.e. on facts and on law; that in so far as appreciation of certain facts and reaching of a conclusion thereof, is concerned, the same need not be disturbed by a higher (revisionary authority in this case) forum unless the conclusion reached by the lower authority was a perverse one; that in that view of the matter, grounds (a), (c) and (d) of the show cause notice, are at best difference of opinion between the two since there is no perversity in the findings of the Collector (Appeals), who also relied upon certain case law, the same cannot be set aside in revisionary proceedings (in view of Supreme Court decision AIR 1986 Supreme Court 1721). 7. It was also stated that on the legal issues it was only ground (b) that is for consideration of the revisionary authority. Drawing distinction between the degree of proof required for confiscation of goods and imposition of penalty, the learned Advocate stated that test of preponderance of probability was germane only in relation to confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed person, knowing his rights very well, there were also independent witnesses available (i.e. Pancha's). It is thus clear that either there was a bona fide error made by the jeweller in affixing a wrong date to his signatures while certifying the purity of goods or, which normally may happen, the interception having taken place in the evening of 9-4-1988 and formalities going on till 10-4-1988 the date of beginning of the Pancha's narration is taken as date of Panchnama. But that should not ipso facto dilute the fact of recovery. 12. In view of above the respondent's plea that goods did not belong to him is least convincing. In taking this view support is drawn from CEGAT decision in the case of Madan Gopal v. Collector of Central Excise, Nagpur [1986 (26) E.L.T. 833 (Tribunal)] wherein CEGAT had held that "The appellant was detained and his person was searched in presence of Panch witnesses. There was no reason for any aspersion on the veracity of the Panch witnesses and there was no reason for the Customs Officer to pick up appellant from all the passengers who were travelling by the train. No hostility was alleged against the Customs Officers. Therefore, the plea of disowning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive part of the offence. This also logically explains the variation in the date in the Panchnama and the gold test report of the jeweller dated 10-4-1988. 15A. As regards the plea that the statement was not voluntary, recorded under duress and thus not to be relied upon, it is observed that the said statement under Section 108 of the Customs Act is in respondent's own hand and contains certain details exclusively in his own knowledge like his service and various postings, his family particulars etc. which could not have been known to the Customs authorities. The said statement which was recorded on 9-4-1988 was retracted only on 18-4-1988 (even though the respondent had sufficient opportunity to retract the same early). Except for a bald statement no positive averment has been brought out to support this plea. It is trite law that a mere denial does not ipso facto prove innocence of an accused. A retraction has to be corroborated by evidence, which is awfully lacking in this case. In this view. Government get support from CEGAT decision in the case of D.R. Chakrapani Chettiar and Others v. Collector of Central Excise, Madras [1985 (21) E.L.T. 836 (Tribunal)] wherein CEGA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by Hon'ble Supreme Court's decision in the case of Percy Rustomji Baste v. State of Maharashtra - AIR 1971 Supreme Court 1087 = 1983 (13) E.L.T. 1443 (SC) wherein the Court held that :- "A person summoned under Section 108 of Customs Act, is bound to appear and state the truth while giving the evidence." 19. Since the respondent knowing very well (as admitted in the statement) that it was an offence to bring Primary gold without the permission of RBI, yet had attempted to smuggle the same by concealing thereby contravening the provisions of the Customs Act and thus rendered himself to penal action under Section 112 of the Customs Act. The offence becomes more serious as the applicant not only failed to declare the same but also misused the facility of Green Channel as the recovery was only made when he was intercepted at the Exit Gate. 20. In taking this view reliance is placed on the Hon'ble Supreme Court's decision in the case of Collector of Customs v. D. Bhoormal -1974 (2) S.C. (544) = 1983 (13) E.L.T. 1546 (SC) (which incidently is also quoted by the respondent). In this case, the Hon'ble Court had held that "the law does not require the prosecution to prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sceptible of two interpretations, one in favour of the prosecution and the other in support of the defence version" that the benefit of doubt will go to the accused (Rishipal v. State - AIR 1962 ALL. 13; Shivaji Sahebrao Bobade v. State of Maharashtra - AIR 1973 SC 2622). Again it is only "if the data leaves the mind of the trier in equilibrium— - If the mind of the adjudicating tribunal is evenly balanced as to whether or not the accused is guilty" that benefit of doubt will apply (Haris J. Mal v. State -1982 Cr. LJ 2123). Now, in the instant case, it is difficult to hold that there are two reasonable and equally likely possibilities one of actual recovery and the other (of not being recovered from him) and of gold being planted on holder of a diplomatic passport in full view of the passengers at an international Airport and forcible recording of a statement from him in his own hand-writing. The minor discrepancies of Superintendent (Customs) deposition and different date by the jeweller notwithstanding Govt. is not inclined to accept that there is even a little chance of these two possibilities being evenly likely. Recovery of gold from the respondent is clearly established. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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