9911796707
TMI Blog1992 (11) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... as advanced by the learned Counsels for the appellants all the appeals are consolidated and disposed of by this single order. 3. These appeals are directed against the respective impugned orders of the Additional Collector of Customs, Visakhapatnam levying following penal- ties under the provisions of me Customs Act, 1962 : Sl.No. Name of appellant Penalty levied Under Section 112 CA Under Section 114 CA 1. Peter Daniel 16,000 1,000 2. A.D' Silva 40,000 10/000 3. Babu Rao 12,000 2,000 4. D.R. Fernando 20,000 2,000 5. U.K. Mohammed 20,000 1,000 6. M.L. Brahmanian 2,000 - 7. L.D. Solenki 6,000 1,000 8. K. Subramaniam 30,000 5,000 9. P. Mani 20,000 3,000 10. S. Rajasekharan 25,000 5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justification for the authorities to record again statements from the appellants at a later point of time between 9-7-1986 and 13-7-1986 under Section 107 of the Act. The statements were subsequently retracted and therefore do not have evidentiary value in law. The appellants' lawyer sent telegram to the Collector of Customs on 9-7-1986 complaining that the inculpatory statements were brought about by coercion and threat and the authorities had seized the "continuous discharge certificate" (CDC) of the appellants which is necessary for the appellants to get job in ship and it was only by holding out threat by seizure of the vital documents like the CDC which provide the appellants livelihood, by using coercion, threat and ill treatment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot voluntary and true. The learned Counsel referred to the cross-examination of Shri V.V. Saikumar, Preventive Officer on 21-5-1987 and urged that to a question as to whether crew members "were under your surveillance both at the ship and at Seafarers' Hostel, Vizag," it was answered that "there was a guard on the ship". The learned Counsel also referred to the cross-examination of Shri U. Maridas, Preventive Officer dated 21-5-1987 and urged that he has admitted that "he did not know as to who had directed the crew members to stay in Seafarers Hostel, may be the Superintendent or higher authorities". Shri Maridas, Preventive Officer further admitted in his cross-examination that the Supdt. was supervising the work. To a question during cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting of the complicity and involvement. In regard to plea of wrongful confinement the learned D.R. submitted that the Shipping Corporation of India never made any complaint that their employees i.e. the appellants were kept in wrongful confinement against their wish in the Seafarers Hostel. 8. We have considered the submissions made before us. The fact of seizure of a very substantial quantity of contraband goods valued at more than Rs. 1.19 crores is not disputed or disputable either on the evidence available on record. The plea that there was no mahazar at the time of recovery of the goods from the two Wing Tanks has no substance since the mahazar and the list of inventory would clearly bear out not only to the seizure but also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded under Section 108 of the Act were exculpatory would not ipso facto render the subsequent statements either inadmissible or any the less in evidentiary value. We have gone through the statements from the appellants under Section 107 of the Act. Statement of Fernando recorded under Sections 107 & 108 and the inculpatory statements of other appellants recorded under Section 107, in our view are voluntary and would merit acceptance. The appellants in the cross-examination of the officers who recorded the statement could not probabilise the plea of coercion or ill-treatment or undue influence. There is nothing to indicate that the appellants were kept in a state of wrongful confinement in the Seafarers Hostel. As rightly contended by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention on behalf of the appellants that the Department cannot rely upon the statement of Arun Richard given on 2-7-1986 since admittedly the same was not referred to in the show cause notice nor copy given to the appellants. In our view, exclusion of that statement from the consideration would not otherwise affect the merits of the Department's case in bringing home the charge against the appellants. 9. We find that the materials available on record for levying penalty under Section 114 of the Act are not adequate enough to fasten the appellants with penal consequences under that Section. For want of evidence that the goods were attempted to be improperly exported coming within the mischief of Section 113 of the Act, we exonerate the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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