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TMI Blog2013 (9) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... International. 2. The facts in brief are that on 26.11.1999 on specific information, the Customs Preventive Wing apprehended one parson who introduced himself as Mohammed Hashim Abdulla. On an enquiry, he accepted that he was carrying foreign currency in his person which was the sale proceeds of the smuggled goods. Therefore, he was taken to the office of Jt. Commissioner of Customs, Marine & Preventive Wing at Marine Drive, Mumbai. A detailed search of his person in the presence of an independent witnesses which resulted in recovery of USD 10,100/- equivalent to Rs. 4,39,350. As the appellant could not produce any licit documents for acquisition and possession of the foreign currency recovered from him, the said foreign currency was seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 This standing practice of receipt of foreign currency transactions by cash is well recognized by law as per the guidelines issued by Board's Circular No. 17/95-Cus dated 1.3.1995. In the instant case, the amount is attributable towards export order placed by two foreign nationals and given to the appellant by these foreign nationals duly supported b y an affidavit as well as export order. Even if there is any violation of Section 8(1) of FERA, the same violation is at the hands of such foreign pax and not at the hands of the appellant and hence the currency would not be liable for confiscation. 3.2 The learned Advocate further submitted that the US $ 10,100/- was an amount for an order placed by one foreign pax as an advance for an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments. He further submitted that when the source of foreign currency was explained and supported with documents including the notarized affidavit filed by the two foreign nationals of having given the amount to the appellant towards export order placed by them. The relevance of the statement recorded under force loses its evidenatry value as held by this Tribunal in the case of Azizur Rahaman vs Commissioner of Customs (Prev.). Kolkata- 2012 (285) ELT 401 (Tri-Kolkata). 3.6 He further relied on the decision of the Hon'ble High Court in the case of Commissioner vs. A.Kumar Industries -2012 (281) ELT A19 (Guj). Wherein it was held that the documentary evidence produced by the appellant towards export needs to be taken into consideration. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure is admissible evidence." 4.2 He also relied on the decision in the case of K.I. Pavunny vs. CCE- 1997 (90) ELT 241 (SC) wherein it was held that a "Confessional statement of accused, if found to be voluntary, can form the sole basis for conviction". 5. Heard both sides and considered the submissions in detail. 6. In this case, the appellant was apprehended and on physical verification it was found that the appellant is having US $ 10,100/- in his possession. At the time of apprehension it was accepted by the appellant that the foreign currency is sale proceeds of the smuggled goods. The said statement was retracted by the appellant within 15 days through documentary evidence showing that the said foreign currency recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther find in the case of Azizur Rahaman (supra) this Tribunal has observed 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 numb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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