9911796707
TMI Blog2015 (5) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... ndles of cloth (6174.90 metres of silk fabrics of Chinese origin), which were collectively valued at Rs. 12,34,980/-. Follow-up searches at the appellant, Sanjay Maheshwari's residence resulted in the recovery of 13316.62 metres of silk fabric of Chinese origin, valued at Rs. 26,63,324/-. Resultantly, the combined value of the seized material was Rs. 38,98,304/-. Since no legal authorization of purchase could be traced, the goods were seized. Ranjan Sarkar, the driver, and the appellant, were found in the van. After various enquiries, and recovery of other material, the appellant's voluntary statement under Section 108 of the Customs Act, 1962, was recorded. He stated that in August 1997, M.P. Goenka, (whom the appellant referred to as R.N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se silk case, on 03.04.2003, M.P. Goenka's appeal was allowed, and the order dated 28.09.2000 was set aside and remanded back for fresh consideration, in order that the witnesses be cross-examined. Separately, on 01.07.2003, M.P. Goenka was exonerated on merits, in the case related to the polyester goods. The CESTAT, held that there was sufficient evidence demonstrating that Goenka's confessional statement was extracted through coercion, and that there was no corroborative evidence to prove his guilt. On 12.10.2006, the appeal of the Customs against this order was dismissed. 4. The remanded proceedings (in the Chinese silk case) were decided by the Commissioner of Customs (Preventive), and on 15.01.2009, an order was passed imposing a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the retraction of Shri. M.P. Goenka and Shri. Sanjay Maheshwari there is no independent evidence to establish the involvement of the two persons with the smuggled Chinese Silk is also without merit. 42.4.2. Firstly it is seen that the retraction of the Co-noticeeShri Sanjay Maheshwari has no weight and his confessional statement is binding. Secondly, as has been held by CESTAT in the other case of polyester curtain cloth, it has to be seen whether in view of Shri. M.P. Goenka's retraction, there is any corroborative evidence to establish his involvement in the smuggling of Chinese Silk. 42.4.3. In his statement Sanjay Maheshwari refers to the supplies of Chinese Silk by Goenka from Kathmandu which he sold on commission basis. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry slip and the fact of delivery of 11 bales to Monu Haldar on 23.1. 98 for which the signature was taken on the register. Since these documents were resumed on the night of 23.1.98, there cannot be an argument that the same were manipulated. 42.4.5. Thus apart from the inculpatory statement of the co-noticee, there are sufficient corroborative statements and documentary evidence to establish that 11 bales or cloth were delivered from the godown hired by M/s. ATC to Monu Haldar, who had brought it to M/s. RIN. That these were Chinese silk is established from the Panchnama, the tags and labels recovered and statement of Shri. G.D. Maheshwari. The inculpatory statement of Co-noticee establishes that 9000 meters had been delivered to him on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e role of the appellant was only that of a commission agent, who sold the material supplied by M.P. Goenka; he was not involved in, or had abetted in the alleged smuggling operations. He relied on the decision of the Supreme Court in A. Tajudeen v. Union of India 2015 (317) 177 (SC) where it was held that statements made during a police or enforcement office raid, or contemporaneously, are suspect and if such statements are retracted subsequently, they "ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements, through independent sources.." It was therefore argued that the entire recovery and panchnama recorded in this case could not have been relied upon to cast penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact that he was involved in contraband goods, or was an innocent agent of the real culprit is therefore, a matter of fact, appreciation of which has been undertaken by two adjudicating authorities. Besides, the Court notes that the conclusions here were based not only on the retracted confessional statement but also based on the seizure -which was witnessed by the appellant's father, who recorded a statement (and who was cross-examined during the adjudication proceedings). Moreover, there was no material adduced by the appellant to substantiate the legitimate source of these seized goods; had they been purchased through acceptable channels, some support in the form of invoices, receipts etc. would have invariably found their way in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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