TMI Blog2007 (6) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,07,437/-(Rupees sixteen lakh seven thousand four hundred and thirty-seven only) and confiscating Indian Currency of Rs. l,320/- (Rupees one thousand three hundred and twenty only) absolutely under Section 121 of the said Act. The seized newspapers and cotton waist belt were confiscated under Section 119 of the Act. Following penalties were imposed under Section 112(b) of the Act on the Appellants as noted each :- Sl. No. Appellant Amount of penalty imposed 1. Shri Sambhu Nath Dubey Rs. 3,50,000/- 2. Shri Sandeep Jain Rs. 1,50,000/- 3. Shri Prakash Chand Jain Rs. 1,00,000/- 4. Shri Manoj Kumar Jain Rs. 1,50,000/- 1.2 While passing the impugned order, the ld. Commissioner held that the gold biscuits under seizure were not legally procured nor evidence of legal possession produced at the time of interception or in course of investigation and there was attempt to explain the same through unlawful means without cogent or credible evidence. So far as the Appellant No. 3 Shri Prakash Chand Jain was concerned it was held that he was attempting to give a colour to the smuggled g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appear before the customs authorities for examination. 1.7 Show cause notices were issued to all the above four Appellants asking to show cause on the allegations stated therein informing them the consequence of law that may follow if they do not show cause or the cause shown is unsatisfactory to the authorities. Adjudication was completed as stated in Para-1.1 aforesaid. The order so passed was subject matter of dispute earlier before this Tribunal which was registered as Appeal Case Nos. S/876-879 and A-887-890/Cal/2000. Those were disposed by order dtd. 5-7-2000, remanding the matter for de novo adjudication. Such adjudication was done on 23-9-2003 hearing the matter 1.8 The Appellants being aggrieved by order of de novo adjudication have come in Appeal before this forum in this batch of appeal submitting that the order was passed illegally. They were falsely implicated. Legal purchase of the impugned gold was backed by proper evidence available on record. But that was discarded unreasonably. It was also their grievance that the authorities recorded statement on 10-4-1996 from Shri Sandeep Jain and Shri Manoj Kumar Jain under pressure, threat, coercion and torture in custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for and on behalf of the Appellant Nos. 2 4 i.e. Shri Sandeep Jain and Shri Manoj Kr. Jain, submitted that the seizure of gold was made from them on 10-4-1996 while show cause notice was issued on 10-10-96 i.e. after six months. Both the Appellants were dealt deterrently in the custody of the customs authorities on seizure of the gold from them. The impugned gold belonged to Shri Prakash Chand Jain of Raipur, who is Appellant No. 3 and without examining him, both the Appellants were forced to confess for which charges were made against them falsely basing on confessional statement. Statement was recorded from them under coercion and duress and those were retracted before the appropriate court on 11-4-1996. The retraction statement was not at all considered by the authorities below for which the confessional statements were used against them without any corroborative evidence. According to the ld. Counsel, the enquiry conducted by DRI, Trivandrum was questionable for not recording any statement from the N.R.I, to corroborate the Investigation story. He further submitted that when the owner of the gold Shri Prakash Chand Jain disclosed that he had purchased that gold fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 (149) E.L.T. 427 (Tri. -Kol) - Giridhari Dubey v. CC (Prev.),Kol. (g) 2002 (149) E.L.T. 431(Tri.-Del.) - U.P. State Sugar Corpn. v. CCE, Allahabad. (h) 2002 (147) E.L.T. 807 (Tri. - Del.) - Ram Lubhaya v. CC, New Delhi, (i) 2002 (147) E.L.T. 810 (Tri. -Mum) - Chakan Overseas Inc. v. CC, Nhava Sheva. (j) 1997 (18) RLT 641(SC) - K.I. Pavunny v. AC (HQRS), Central Excise Collectorate, Cochin. (k) 2003 (158) E.L.T. 602(Tri.-Del.) - Elex Industries v. CCE, Chandigarh. (l) 2003 (158) E.L.T. 604 (Tri. -Del.) - Dabur India Ltd. v. CCE, Ghaziabad. (m) 1992 (59) E.L.T. 442 (Tri) - Debu Saha v. CC (Prev). (n) 1992 (59) E.L.T. 448(Tri.) - Hindusthan Motors Ltd. v. CCE. (o) 1978 E.L.T. (J-385) - Banshi Dhar Lachhman Prasad Another v. UOI and others. (p) 1978 E.L.T. (J.389) - UOI v. Ramlal Mansukhrai Rewari Another. (q) 2003 (152) E.L.T. 77 (Tri.-Del.) - CCE, Jaipur-I v. Creative Engineers. (r) 2002 (142) E.L.T. 402 (Tri.-Chennai) - Western India Paints Colour Co. (P) v. CCE, Chennai. (s) 2002 (142) E.L.T. 405 (Tri.-Del.) - CC, New Delhi v. H.D. Shoes International. 3. Ld. JDR on the other hand submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant shall prepare his defence. The claim of M/s. Tripura Sundari Jewellers of Ahmedabad as to purchase of imported gold by that concern from one Mr. Nazarat Ali Haider Ali through Baggage Receipt No. 48666 dt.1-4-96 issued by customs Authority at IGI Airoprt, New Delhi was examined by the D.R.I. officials of Trivandrum and Ahmedabad and proved to be false. The baggage receipt No. 48666 dt. 1-4-96 relied by them was found to have been issued to one Mr. Nazarat Thudias in T/C 47/1174 of Colony Veedu, Poon thura, Kerala for import of 42 Pcs. of gold bars weighing 4.914 Kgs. at IGI Airport, New Delhi. But such document was used as means to colour that such gold was brought by one Mr. Nazarati Haiderali of Inkuviz, Pondichery of Kerala and such person was seller of 30 pcs. of gold to M/s. Tripura Sundari Jewellers of Ahmedabad. Such means to explain purchase of 30 pieces of gold bar by M/s. Tripura Sundari Jewellers of Ahmedabad was proved to be false for the reason of denial of the signature of Nazarat Ali Hyder Ali as appearing in purchase Bill No. 9 dt. 6-4-96 issued by M/s. Tripura Sundari Jewellers, to be signature of Mr. Nazarat Thudidias by his wife in comparison to the sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ye of the officer who is well-equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances. The above proposition of law was reiterated by the Hon ble Supreme Court in Indru Ramchand Bharvani v. Union of India, 1992 (59) E.L.T. 201 (S.C.) = (1988) 4 SCC 1, See also Assistant Collector of Customs v. Mohanlal Shankarlal Kansara, 1990 (Supp) SCC 793. 4.6 The power of the customs authorities is reserved by Section 108 of the Customs Act, 1962 to collect information issuing summon. The object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to take proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of the Evidence Act. 4.7 Though the authority/officer on suspecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner . As noted, the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 4.12 It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it- all exactness is a fake . El Dorado o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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