TMI Blog2015 (5) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 into the record. The complete absence of such material or documents negates the appellant’s arguments. - Decision in the case of M.P. Goenka [2015 (2) TMI 263 - DELHI HIGH COURT] distinguished - Decided against assessee. - CUS.A.A.8/2015 - - - Dated:- 20-4-2015 - S. Ravindra Bhat And R. K. Gauba,JJ. For the Appellant : Sh. C. Hari Shankar, Sr. Advocate with Sh. (appearance not given) For the Respondent : Sh. Kamal Nijhawan, Sr. Standing Counsel ORDER Mr. Justice S. Rav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the godown, and this time took into possession 206 (136 + 70) bales of polyester curtain and suiting cloth. Consequently on 29.1.1998 and 30.1.1998, M.P. Goenka was taken into custody, and a confessional statement was recorded by him. The next day - i.e. 31.1.1998, the appellant was produced before the court, where he retracted his confessional statement. Thereafter, the Customs issued him a Show Cause Notice with respect to the polysester curtain and suiting cloth goods. On 17.07.1998, a Show Cause Notice was also issued to M.P. Goenka (and others) in respect of the Chinese silk goods. There were, therefore, two separate Show Cause Notices and two separate proceedings, one related to Chinese silk and the other to polyester cloth. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence could be found against M.P. Goenka. The adjudicating officer, however found that the present appellant's confessional statement was not obtained under duress. There was no medical evidence showing that fact, and the retraction itself was vague and unsubstantiated. Invoking the well- established principle that the burden of proving duress is upon the party alleging it, the Commissioner held that it could not be said that the confessional statement was extracted involuntarily, or that it lacked evidentiary value. The Commissioner relied on the Supreme Court decision in K.I. Pavunni v. Assistant Commissioner, 1997 (90) ELT 241 SC, to say that a customs officer was not a police officer, the maker of the confessional statement under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of his confessional statement. He also reiterates the fact of transactions of Chinese silk with Goenka in the reply to SCN as also in the Final synopsis. 42.4.4. Apart from this, I find that the statement of Sanjay Maheshwari that 11000 meters of Chinese Silk was to be delivered on 22.1.98 and thereafter actually delivered on 23.1.98. The reasons for this change are such as within his particular knowledge, but the facts are confirmed independently, by the statements of Suresh Attree, Godown keeper and V.K. Jindal, Manager of M/s. PTC. The statements of these two persons has never been retracted. The panchnama drawn for recovery of delivery register and delivery slips of M/s. PTC has not been assailed. Though Suresh Attree was not cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no doubt that Shri. Goenka has knowingly dealt with smuggled Chinese silk cloth from Nepal. Therefore I find him liable to penalty under Section 112 (b). The CESTAT dismissed the appeal preferred by both the aggrieved parties. This Court had considered a challenge to the order of CESTAT, by M.P. Goenka, in CUS.A.A.1/2015 and dismissed the same on 14-01-2015. 5. Shri C. Hari Shankar, learned senior counsel argues that the impugned order is unsustainable in law. It was submitted that save and except the so-called confessional statement of the appellant, i.e. Sanjay Maheshwari, there was no tenable or credible material which could have established his culpability. Counsel highlighted the fact that the onus lay upon the Customs authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute ban. But it must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non-police personnel. This Court had also noticed the previous decisions in K.T.M.S. Mohammed. v. Union of India AIR 1992 SC 1831 and Vinod Solanki v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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