Home Case Index All Cases Customs Customs + AT Customs - 2016 (4) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (4) TMI 607 - AT - CustomsWhether guilty of fraud - Export of red sander, prohibited goods - Mis-declaration as gypsum board - Held that:- evidence gathered under section 108 of the Customs Act, 1962 is not from an accused or accused person. The words ‘accused’ or ‘accused person’ is used only in a generic sense in law. Recording of the proceeding by customs being pre-accusation stage that is not extracted from an accused. Therefore, customs officer is not a police officer as is defined under Evidence Act and Code of Criminal Procedure. Accordingly, appellant's plea that the exculpatory statement of the appellant has credence in evidences does not sound well when he had pre-meditated design to commit fraud against Revenue. The statement made by Alexander inculpating the appellant could be used against him as substantive evidence following the ratio laid down by the Hon'ble Supreme Court in the case of Naresh J Sukhawani Vs. Union of India [1995 (11) TMI 106 - SUPREME COURT OF INDIA]. The 108 statement resulted in confiscation of the red sanders discovered from the cavity on the gypsum boards was sufficient a proof which could be instrumental to trace the appellant. It is also settled principle of law that even if the confession is retracted the time within which such retraction has been made and the veracity of the retraction play a vital role for believability thereof. Confession binds the author and against whom the deposition has been made. The contravention of law and the offence committed in the organized manner was under absolute secrecy which was proved from the discovery of red sander from the cavity made in the gypsum board to hide the same. If the appellant is granted any leniency, that shall be bonus to smuggling. So also unchecked smuggling when upsets the economy, appellant fails to deserve any leniency. All these can be said following the principles of law laid down in the case of KI Pahavunny Vs. Assistant Collector (HQ), CX, Collectorate of Cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA]. The evidence on record having probative value it is the objective evaluation thereof applying relevant test, finding has been reached. There is neither any surmise nor suspicion that can be attributed to investigation. They made their story very successful. No fancible reason has been assigned by them. The issue germane from the root of the matter and has been well tested by the investigation. Reason being soul of the law they have tried to establish the truth of the clandestine deal by a detailed investigation. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity are routed from man's proclivity. Flattering when it is tested on the anvil of the circumstantial evidence, truth trans and scanning evidence going through the reasoning of the learned adjudicating authority it imbibes a feeling that investigation result is not false. Therefore, evidence gathered by Revenue unambiguously proved that the appellant was contributory to the fraud committed against customs. It is established principle of law that fraud and justice are sworn enemies. The smuggling racket perpetuated smuggling for many years in the past as is revealed from their conduct. - Decided against the appellant
|