TMI Blog1999 (12) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the consignees but no reply was received from him. On enquiry, the Assistant Collector Customs, Raxaul intimated, under letter dated 28-2-1993 that the identity of consigners could not be ascertained from Raxaul Railway Station in absence of their complete address. Subsequently under different letters received on 5-1-1993 in Commissionerate, all the 4 appellants claimed the ownership of the scrap as under:- NAME QUANTITY CLAIMED 1. Sh. Suresh Kumar 2,050 kgs. 2. Sh. Mohan Prasad 1,640 kgs. 3. Sh. Ram Prasad 2,050 kgs. 4. Sh. Ram Kumar 1,476 kgs. 7,216 kgs. 2.2 In his statement dated 22-3-1993, Shri Suresh Kumar mentioned that he had no connection with the seized copper scrap which was booked in his name for Delhi from Raxaul; that some persons asked him to go to Delhi and get the goods released; that these persons were engaged in the sale and purchase of smuggled copper scrap which was brought into India from Nepal. Similarly, other 3 appellants also denied any concern with the seized goods in their statements dated 22-3-1993 and they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in of the scrap; that he was not aware of the exact country of origin of scrap; that it was held by the Tribunal in Amar Dutta v. Collector of Customs - 1990 (49) E.L.T. 61 that a visual examination was not sufficient to hold that the goods were of foreign origin. Moreover in the cross-examination he stated that he was able to identify the origin of the scrap on the basis of his experience as office bearer of the Association whose members were dealing with scrap. He has no technical qualification to give such an opinion. He was President of the Small Wire Drawers Association. The members of such Association are manufacturers of wire and not traders engaged in the sale or purchase of scrap. She also mentioned that the scrap may generate from various goods which may be made in India or abroad. Further only 8 to 10 out of 267 bags were opened and it would be wrong to presume that all the 267 bags contained the same goods; that perhaps bags belonging to them were not opened at all. She also submitted that Raxaul is a big market for scrap items; scraps of Indian origin as well as of Nepali origin was sold there and the scrap may have arisen either from Nepalese goods or items which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter and were forced to write incorrect statements. Chotelal Prasad and Pasupathi Prasad who were witnesses at the time of the recording of the statements of Harish Chand had submitted affidavits that he was made to write a false statement under coercion. 5. She finally submitted that the Commissioner had placed considerable reliance on the statements of the appellants to show that the goods were of foreign origin. The statements were false and involuntary and had been retracted the next day of recording the statements. The fact that they wrote in the complaint that the same may be utilised later, in no way indicates that complaint was not natural. Further the statements do not support the case of the Department. It had been stated in the statements that they had been paid to get the goods released and later on they came to know that the goods were smuggled from Nepal. This does not show that the goods were of foreign origin - that is of origin other than India or Nepal. Reliance was also placed on the decision in the case of Haricharan Kurmi v. State of Bihar - AIR 1964 S.C. 1184 wherein it was held that confessional statement must be corroborated by solid evidence; and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted to prove that the impugned goods were smuggled goods. The enquiry revealed that the premises of M/s. Light Battery Repairing Centre was very small and the owner denied to have issued any bill or giving any statement. Similarly, no firm in the name of M/s. Newlight Battery Repairing House was found in existence at Raxaul. Further owner of M/s. Sunrise Battery stated that he had closed his earlier firm (New Sunrise Battery, Raxaul) a few months back and denied to have issued bill or giving statement. The learned DR, therefore, contended that bills produced by the Appellants were fictitious and the Department has discharged its burden of proof which has now shifted to the appellants for proving lawful possession of impugned goods. He relied upon the decision of the Supreme Court in the case of Kanungo Co. v. Collector of Customs - 1983 (13) E.L.T. 1486 (S.C.) in which it was held that the burden of proof had shifted on to the appellants after the Customs Authorities had informed the appellants of the results of the enquiries and investigations. 7. We have considered the submissions of both the sides. The goods in question is copper scrap which was seized at Delhi Railway Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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