TMI Blog1997 (12) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the appellants goes to show that these were foreign silver melted by them and thereafter these silver bars were being transported by concealing them in the Maruthi car. After the statement was taken and after due investigation, the Show Cause Notice was issued. The appellants had retracted their statements after about 8 days of giving their initial statements. After granting a personal hearing to the appellants, the impugned order was passed. 2. The ld. Advocate Shri Lakshmi Narayanan appearing for the appellants pointed out that provisions of Section 123 is not applicable to the facts of this case. He pointed out that there was a Mint Certificate showing that the purity of the silver was below 97%. He also pointed out that the original statements given by the appellants were retracted by them. It was pointed out that the statements were obtained while they were in custody and the same were not voluntary statements. He also pointed out that the evidence of the co-accused as well as the accused is insufficient to pin the liability on the appellants. It was also pointed out that there was no reasonable belief for seizing the silver in question. He, therefore, pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, pointed out that suitable redemption fine should have been fixed and the absolute confiscation is not correct. He pointed out that under Section 115(2) of the Customs Act, it is clearly stated that any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, and under the proviso it is clearly stated that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance. He, therefore, pointed out that since this car is used for carrying the passengers, under the proviso to Section 115(2), the adjudication authority should have given an option to pay in lieu of confiscation of the conveyance, a fine not exceeding its market price. He, therefore, pointed out that legally the absolute confiscation is not sustainable. 6. We have considered the submissions. The first point for determination is whether Section 123 of the Customs Act can be invoked in this case. It is now seen that 49 bars of silver bullion weighing 215 kgs. were found concealed in the car. When the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cases, we have come across that the accused who pleaded such threat or inducement used to request the Magistrate to send them to the jail Doctor in order to get themselves examined and to prove the circumstances. But in this case, there is absolutely no such circumstance available before us. It is also seen that the appellants could have mentioned before the Magistrate when they were produced before the Magistrate that they were ill-treated. Therefore, in the absence of any statement made before the Magistrate with respect to this ill-treatment or coercion and in the absence of any such circumstance available before us to hold so, we are of the opinion that the statements given by the appellants are voluntary and true and could be acted upon. 10. The ld. Advocate contended that in this particular case, even it is held that Section 123 is attracted the appellants had discharged their burden. In this connection he drew our attention to say that the department itself had sent the silver in question to the Mint Master who opined that purity of the silver ranged from 997.3 (Max.) i.e. less than .999% which was weighed with the officers while seizing the silver. In this connection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is whether the absolute confiscation of the Maruthi Car in question is legal. In this connection, we observe that under Section 115(2), appropriate redemption fine should have been fixed and we have already held that in the facts and circumstances, the silver in question should have been allowed to be redeemed on the same analogy, we are of the view that the car should be allowed to be redeemed. In the facts and circumstances, we hold that interest of justice will be met, if the redemption fine is fixed at Rs. 25,000/- (Rupees Twenty Five Thousand only) and we order accordingly. 13. As far as confiscation of Indian currency of Rs. 40,000/- is concerned, it is clear from the statement of Shri Raju Gundesh that this amount represented the sale proceeds of smuggled silver. It is now very clear that this statement obtained by the officers under Section 108 of the Customs Act have got evidentiary value as is held by the Supreme Court in the decision reported in 1996 (83) E.L.T. 258 (S.C.) = 1996 (62) ECR 366 and 1996 (64) ECR 346. Therefore, these are substantive piece of evidence connecting the appellants with the contraventions and relying on the above said evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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