TMI Blog2013 (5) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant on the ground that the Revenue has failed to discharge the burden in establishing that these goods were of foreign origin and smuggled into India. However, on appeal filed by the Revenue, the Hon’ble High Court has remanded the matter to consider the statements of various persons and retractions made by these persons in deciding the issue afresh. In the present case, except the statement of the persons referred to above, there is no other corroborative evidence indicating that the impugned goods were of foreign ship breaking scrap and illicitly imported into India. In these circumstances, Tribunal find that the Revenue has failed to discharge its burden in establishing that the goods were of foreign origin and smuggled one particularly when the impugned goods were not notified under Section 123 of the Customs Act, 1962. - Decided in favor of assessee. - C/295/2007 - A-396/KOL/2012 - Dated:- 22-6-2012 - Dr. D.M. Misra, J. REPRESENTED BY : Shri Arijit Chakraborty, Advocate, for the Appellant. Shri S. Misra, Additional Commissioner (AR), for the Respondent. [Order]. By an order dated 17th August, 2010 in Customs Appeal No. 8 of 2009 [2011 (264) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an at a high speed and ultimately stopped at Nalhati Check Post. Further he has stated that he was offered Rs. 300/- for accompanying the illegal goods by Aaji Prodhan. 2.3 Mr. Saheb Ali Mondal has stated that on 18-9-2004 at about 10.00 pm, he was instructed by the owner of the truck No. WB-57-4215, Senjarul Shaikh for loading some scrap of about 3300 kgs. which was mainly broken brass metal/foreign ships and the loading was done by labourers who were unknown to him. He further stated that at the time of loading, the owner of the scrap (i) Aaji Prodhan, (ii) Mantu Biswas, (iii) Ataur Rahman (iv) Latib Shaikh, were present and they all guided and supervised the entire loading of scrap of broken ship in truck No. WB-57-4215. He also stated that the white clothed officers intercepted and seized the truck No. WB-57-4215 at Nalhati Check Post. He also admitted that he had done the same business earlier twice and delivered it to Rajkumar, residence of Maniktala, Kolkata by the same truck. Further he has stated that though he knew that carrying these scraps of broken foreign ships is offence, he had to do it for Rs. 500/- because of poverty. 2.4 Mr. Adhirsta Bhoimali, in his state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The names of the other two parters are (i) Atarul Shekh and (ii) Latiff Shekh. He stated that they were to deliver the illicit brass and metal scrap of broken ships to a Kolkata Resident named as Rajkumar at A.K. Steel compound besides the Maniktala Canal on a commission basis of Rs. 3000/-. There was no other owners of the said goods. Before this, only once on the commission of Rs. 3000/-, he transported and delivered the foreign ships-broken in that truck to Rajkumar s above mentioned address. He stated that he does not know anybody Ajijur Rahaman and said Ajijur Rahaman is not the owner of those goods. The name of the person from whom the said goods were taken for delivery at Kolkata on a commission basis is Asraful Rahaman, a resident of Bangladesh, but the exact address of the Bangladeshi resident, is not known to him. He stated that the said Bangladeshi resident is in the practice of coming to Mahaldar Para off and on, crossing the border, whom he can identify. He stated that they had only done the said work on commission basis due to financial hardships and family poor condition. 2.7 In his statement dated 8-10-2004, Mr. Ajijur Rahaman had stated that he is the owner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment dated 4th October, 2004, Md. Senjarul Haque stated that he and his brother Mr. Ajijul Haque are the joint owners of the said truck bearing No. WB-57-4215. At the time of the seizure of the truck, their regular driver had engaged one temporary driver, namely Saheb Ali Mondal and the seizure of goods and vehicle was known to him on 22-9-2004. 2.9 Mr. Jainal Adebin retracted his statement dated 19-9-2004. In his retraction, he has mentioned that on 19-9-2004, some officers of DRI and some people got some blank paper and some sheets written in English forcibly signed by him by beating him up. He was beaten to such an extent that he had to get himself treated at Teghori Hospital on 20-9-2004. The statement that the DRI made is not written by him voluntarily. 2.10 Same retractions were also made by Mr. Atarul Haque, Mr. Montu Biswas Mr. Abdul Latiff. The said retractions were communicated to the Commissioner of Customs, P.U.M.I.T. Kolkata, West Bengal through Assistant Commissioner of Customs, Krishnanagar, Nadia. 2.11 on 5-10-2004, in his retraction, Mr. Montu Biswas had given details in respect of coercive statement obtained from him by one Shri Chinmoy Mitra, an officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion can be arrived at. Besides, all the statements were retracted and such retraction are valid with the support of medical prescription of Government Hospital and the Affidavits duly forwarded to the respondent authorities at the earliest opportunity. In support of this conclusion, he has placed reliance on the following judgments : (i) Asstt. Commissioner of Customs (Prev.), Bombay v. Ahmed. Abdul Karim - 2009 (247) E.L.T. 97 (Bom.); (ii) Commr. of Customs, Mumbai v. Foto Centre Trading Company - 2008 (225) E.L.T. 193 (Bom.); (iii) Franchis Stanly @ Stalin v. Intelligence Officers, Narcotic Control Bureau, Thiruvananthapuram - 2006 (12) LCX 1 (SC); (iv) Rajkumar Damani v. Union of India - 2010 (257) E.L.T. 371 (Cal.); (v) Vinod Solanki v. Union of India - 2009 (233) E.L.T. 157 (S.C.) = 2009 (13) S.T.R. 337 (S.C.); (vi) Commissioner of Customs (Prev.), WB, Kolkata v. Ritu Kumar - 2006 (202) E.L.T. 754 (Cal.); (vii) Arif Sk. v. Commissioner of Customs (Gen.), Mumbai - 2011 (272) E.L.T. 596 (Tri.-Mumbai); (viii) Commissioner of Customs (Prev), W.B., Kolkata v. Rajkumar Jaiswal - 2006 (204) E.L.T. 561 (Cal.); (ix) Rasul Md. Sk. Anwar Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormamad Bakali v. State of Gujarat - 2011 (274) E.L.T. 17 (Guj.). 7.1 Heard both sides and perused the records. I find that the issue involved relates to seizure of brass metal scrap on 19-9-2004 on the ground that they were of foreign origin and illicitly brought into India. Needless to mention that the said brass metal scrap is not a notified item under Section 123 of the Customs Act, 1962 during the relevant time. It is the case of the appellant that since if it is not notified goods, burden lies on the Revenue to establish that the said brass metal scrap were of foreign origin and smuggled into India. It is their claim that on both these counts, the Revenue has miserably failed to establish the same and hence the goods are not liable to confiscation. The Tribunal in its earlier proceeding, allowed the appeal filed by the appellant on the ground that the Revenue has failed to discharge the burden in establishing that these goods were of foreign origin and smuggled into India. However, on appeal filed by the Revenue, the Hon ble High Court has remanded the matter to consider the statements of various persons and retractions made by these persons in deciding the issue afresh. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and smuggled into India cannot itself be accepted, unless other corroborative evidences indicating the same were of foreign origin, are produced. I find that the adjudicating authority has observed that the place of interception of the vehicle is quite prone to and notorious for illegal movement of the goods due to smuggling through the nearby vast Indo Bangladesh Land Border or riverine routes necessitating to set up number of Customs Preventive Units and BSF BOP near and away from the Border in the region. Further, he has observed that the seized goods loaded is a common item for smuggling due to its high value and difficulties in proving its foreign origin nature by the Department and capability for cross border movement through small carriers without any interception by Customs or BSF. I find that these observations are of general in nature and cannot be considered as circumstantial evidence and could be used as corroborative evidence to the retracted statements of various persons. At best, it could be circumstances for raising a strong suspicion but cannot take the place of evidence in arriving at a conclusion that the impugned goods were of foreign origin and smuggled into In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding in the case of Arif Shaikh (cited supra) as under : 13. We reject the statements as evidence being not voluntary and true. As held by the Apex Court in the Pavunny case, rule of prudence and practice requires that a Court seeks corroboration of the retracted confession from other evidence. In the instant case the passenger who incriminated the respondent did not appear before the authorities. Other major party to the transactions Shri John Baretto did not also participate in the proceedings. No corroboratory evidence of the respondent s involvement was gathered by the revenue. In the circumstances, we find no reason to interfere with the impugned order. Accordingly, the appeal filed by the Revenue is rejected. 7.5 I also find that almost identical circumstances involving similar goods, the Hon ble High Court of Calcutta in the case of Raj Kumar Jaiswal reported in 2006 (05) LCX 0321 = 2006 (204) E.L.T. 561 (Cal.), had observed at Para 6, as follows : 6. It is true that the statements made under Section 108 of the Act can be used against the persons from whom the materials have been seized without any corroborative evidence, provided, such statement is recorded after s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proved to be a smuggled one without payment of duty. In the present case, there is no evidence on record to show that the goods are of foreign origin as there is no marking on the scrap and the same is smuggled into India. Therefore, the onus is not discharged by the Revenue. In the circumstances, I find merit in the contention of the appellants and the impugned order is set aside and both the appeals are allowed. 7.7 I find that the common principle runs through the aforesaid decisions is that when a statement furnished under Section 108 of the Customs Act before the Customs Authorities, the said statements no doubt is admissible as evidence, but when there is a subsequent retraction of the said statements then the weight of the said evidence is considerably reduced and there is a necessity for looking at corroboration of the said evidences. In other words, the statement furnished by the persons may not lose its evidentiary value, but a conclusion cannot be arrived at solely based on the said statements unless corroborated by other material particulars. Evidence is weighed and not numbered is the cardinal principle of rule of evidence. In the present case, except the stateme ..... 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