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2010 (8) TMI 539 - HC - CustomsSmuggling - Burden of prove that the goods are imported from Bangladesh - It appears from the record that first authority as well as the appellate authority has proceeded on the basis of confessional statement made by the driver and other co-accused - The confessional statement though plea of retraction being taken, has been accepted to be an admission of evidence - The statement clearly disclosed the fact of importation of the goods from Bangladesh - The burden lies on the owner of the goods or the respondent to prove that the goods were not brought from Bangladesh and the same were of Indian origin, as the goods are admittedly dutiable goods - The Learned Tribunal did not consider the impact of the confessional statement nor examined whether the confessional statement in view of retraction can be accepted or not - The Learned Tribunal should have decided the matter on the question of burden of proof and smuggling character of the goods upon examining the confessional statement made by the respective persons and further the retraction said to have been made. Both the authorities have accepted the statement but the Learned Tribunal did not examine this aspect as it appear from the judgment and order - Accordingly, the judgment and order of the Learned Tribunal is set aside - Direct the Learned Tribunal to decide the matter afresh taking into consideration of the statements made by various persons and as accepted by two authorities and also to consider whether the retraction made by these persons by swearing affidavit can be believed and/or accepted or not, since such plea of retraction was not accepted by both the authorities below.
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