TMI Blog2004 (8) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... dence on record to prove the foreign origin of the seized goods much less the smuggling of the same by the appellant to India from Nepal as alleged by the department. The alleged confessional statement was retracted by the appellant immediately on his production before the Magistrate on 30-1-2000 and later on before the adjudicating authority on 5-5-2000 after his release on bail on 4-5-2000 by the order of the court and as such, the same could not be made basis for passing the impugned order against him. 3. On the other hand, the learned SDR has contended that the confessional statement of the appellant is sufficient to prove the allegations against him of having smuggled the seized goods from Nepal and that subsequent retraction by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already with them prior to that date, has not been disclosed. On the date of his apprehension i.e. 28-1-2000 the appellant was only interrogated on which he disclosed in general terms that he used to smuggle silver from Nepal to Deoria for melting. But his statement under section 104 of the Customs Act was not recorded on that date, it was recorded on 29-1-2000, as I find from paras 5 6 of the impugned order. From the record it is also evident that panchnama regarding recovery of silver bullion/jewellery and Indian currency recovered from the car of the appellant, was not prepared at the place of his apprehension which was Khairaghat, Belthara Road. Ballia. He was rather brought from that place to the Customs House on the ground of safe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same examined in the presence of his A.C. and purity found therein was between 55 to 60%. There is also no evidence on record to suggest if these goods were got melted by the appellant immediately after smuggling as no statement of any melter in that regard from whom he got melted, was recorded. It can also be hardly denied that silver bullions/jewellery is commonly available in the Indian market for sale and purchase after liberalisation of the Import Export Policy in respect of the gold and silver. Therefore, on the simple retracted statement of the appellant it could not be held that he smuggled the goods in question from Nepal to India. Similarly the Indian currency found from his possession could not be presumed to be sale proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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