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2019 (2) TMI 465 - HC - CustomsConfiscation - penalty - illegal import of Gold - appellant has not been able to discharge burden of proof as enshrined under Section 123 of the Act, 1962. Held that:- In the present case entire prosecution is based on the confessional statement given by Shakil Ahmad Khan before the Customs Officers under Section 108 of the Customs Act 1962. Shakil Ahmad Khan subsequently retracted his statement and denied his involvement in movement and/or smuggling of said gold. He further stated that on 27.11.2013 he was going to Lucknow for the treatment of his wife Mrs. Tajni Begum. At Ramnagar Railway Crossing, the Customs Officers checked the bus and asked every passenger about a black packet. The officers asked about his profession, when he told that he is a gold artisan, the Officer dragged him, alleging that the gold belongs to him - there is no other material for imposition of the penalty apart from confessional statement of Shakil Ahmad Khan. In the present case the order passed under Section 111 and 112 of the Customs Act by the Commissioner Customs (P), Lucknow on 05.08.2014 and the said order records the entire proceedings conducted during the investigation. A perusal of the aforesaid order would indicate that no efforts were made by the appellants to prove that the confessional statements were made voluntarily. No Customs Officer or any independent witness was examined by the said authority which could prove that the said confessional statement was taken voluntarily and could be used as a substantial piece of evidence against the respondents. A confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused - In the present case the CESTAT has rightly concluded that a confiscation and penalty order was passed solely on the retracted statement of the appellant Mr. Shakil Ahmad Khan and father of the appellant Mr. Mridul Agarwal and further these persons were not examined in the adjudication proceedings and therefore, the confiscation, penalty order has been passed only on the basis of such confessional statement is contrary to settled legal position and was clearly illegal, arbitrary and liable to be set-aside. No substantial question of law raises in these appeals - appeal dismissed.
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