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2015 (5) TMI 766 - DELHI HIGH COURT

2015 (5) TMI 766 - DELHI HIGH COURT - 2015 (322) E.L.T. 305 (Del.) - Seizure of Chinese silk - no legal authorization of purchase could be traced - Held that:- Whether the appellant was aware 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 s .....

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uments 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. Ravindra Bhat (Open Court) 1. The present appeal is directed against an order of the Customs, E .....

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8377; 26,63,324/-. Resultantly, the combined value of the seized material was ₹ 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. Goenka) had cont .....

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nd 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 goo .....

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3.04.2003, 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 12.10.20 .....

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implicating him. It was further noted that the allegations regarding the smuggling of polyester goods were dropped because no other corroborative evidence 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 i .....

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f the silk goods had not been disputed, and was corroborated by the statement of G.D. Maheshwari, the father of the appellant, Sanjay Maheshwari. The Commissioner then observed: "42.4.1. The argument (para 22(iv)-(vii)) that in view of 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-not .....

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ation also, notwithstanding his several flip flops, and contradictions, he confirms quite categorically that he did have transaction with Goenka, that these were on commission basis and not on purchase/sale basis, that these were of Chinese silk, that the transaction were on phone, that Goenka's man used to collect the payments. (Queries 26, 27, 31, 53, 54, 56-57, 64-65). These are also part of his confessional statement. He also reiterates the fact of transactions of Chinese silk with Goenk .....

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. The panchnama drawn for recovery of delivery register and delivery slips of M/s. PTC has not been assailed. Though Suresh Attree was not cross examined, Shri. Jindal was. Jindal's cross examination has not contradicted his statement that Delivery order for 11 bales was received on 22.1.98 from M/s. ATC for delivery of 11 bales to Virpal and that corresponding delivery slip was issued to the Godown keeper. Suresh Attree's statement corroborates the issue of M/s. PTC delivery slip and th .....

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. 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 22nd morning, and that these bales were the balance quantity of Chinese silk to be sent by Goenka. It is a matter of record that Shri. M.P. Goenka has strong personal and business interests in Nepal and visits the country frequently, and it would certainly not be di .....

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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 authorities to establish that what was seized was contraband, and prohibited items and the authorities fell into error in .....

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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 liability on th .....

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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." .....

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