TMI Blog2009 (10) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... o clear the consignment arrived in the name of a passenger Shri. Sarwar Husain Sagir Husain. One of the suspects, Shri. Vivek Dutta was spotted by the DRI officers outside the office of the International Cargo Carriers viz. FEDEX on the 2nd floor of the building where aforesaid UB Centre is located. Shri Vivek Dutta was found in possession of the following documents:- (a) Cargo Delivery Order No. 1052 dated 17.11.2005 with Airway Bill No. 023-7987-4642 dated 26.10.2005 for 3 packages in the name of passenger S.H.S. Husain. (b) Cargo Delivery order No. 1051 dated 17.11.2005 with Airway Bill No.023-0008-6111 dated 15.11.2005 for four packages in the name of passenger Sarwar Husain Sagir Husain. (c) A notarized authority letter for customs clearance and for taking delivery order of the above said two consignments in favour of Shri Vivek Dutta from Sarwar Husain Sagir Husain holder of Indian Passport bearing No. A5942380 and (d) Passport bearing No. A-5942380 in the name of Sarwar Husain Sagir Husain. 3. On enquiry, Shri Vivek Dutta informed the DRI officers that he had come to Air Cargo Complex to clear the above consignments. The said job was assigned to him by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanied baggage at UB Centre in the Cargo Complex and solicit work from them. With regard the consignments arrived at UB Centre, in the name of Sarwar Hussain Sagir Hussain, one, Sanjay Nair who is also a freelance clearing agent met him outside UB Centre and asked him to handle Customs clearance of one of his clients. Shri. Sanjay Nair informed him that the baggage would be arrived by FEDEX flight on 17.11.2005. Shri. Sanjay Nair was having a typed authority letter addressed to the Asst. Commissioner of Customs. Shri. Sanjay Nair took his signature on the authority letter and informed him that he will get the authority letter notarized and give it to him tomorrow, that he had been regularly clearing goods on the job assigned to him by Sanjay Nair. He further submitted that about ten days back, he had cleared a refrigerator and two washing machines for one of the clients of Sanjay Nair for that he was paid ₹ 20,000/- for that job. On 17.11.2005, he came to UB Centre as usual for his work in the morning and Shri Sanjay Nair met him and gave him authority letter with fax copy of an Airway bill. He found that in the authority letter one more Airway Bill was added, that this addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1.2006. Statement of Arvind Saxena was recorded on 13.1.2006 and was arrested on the same day and when he was produced before the Hon ble ACMM on 14.1.2006 he also retracted his statement made before the Custom Officials. Statement of Shri Ravi Kotian was recorded on 17.1.2006 and was arrested on the same day but released on bail on 21.1.2006. During the investigation, it was also found that on the authority letter the signature of the passenger, Shri. Sarwar Husain Sagir Husain was forged and Shri. Husain in his statement stated that he had given his passport to one Shri Pappa Totla and not to any of the appellants. Shri Pappa Totla could not be traced through out the proceedings. 7. The case of the DRI is that there is smuggling racket consist of one Shri. Pappa Totla and Shri Arvind Saxena, the master mind along with Shri Ravi Kotian, Shri Sanjay Nair and Vivek Dutta as their associates for clearing the goods. Penalties under Section 112(a) and Section 112(b) of the Customs Act were imposed on all the above persons but Shri. Pappa Totla was never traced by the DRI or the Custom Officers. Aggrieved by the imposition of penalties on the appellants, the appellants are before me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court observed that in view of the interpretation of Section 10 of the Evidence Act by the Apex Court, it would be seen that in the present case the confessional statements of accused No. 8 and accused No.9 would not be relevant so as to book the accused. In the trial against accused No. 8 and 9 it has been held that their confessional statements are hit by Section 30 of the Indian Evidence Act. As such the complainant would not be able to rely as evidence against the accused. In the case of CCE, Vadodara vs. Milestone Organic Ltd. the Tribunal has observed that Mere confessional statements, which in any case stand retracted are not sufficient to prove the charge of clandestine removal. Revenue has not been able to establish as to whom the goods stand cleared and what was the mode of the clearance of the same. In the case of K.K. Jain vs. Commissioner of Customs, Kandla the Tribunal has held that It is well settled proposition of law that uncorroborated statement of co-accused cannot be made the sole basis for imposition of penalty on other accused person. The learned Advocate, further, argued that Shri Pappa Totla, the mastermind as per DRI, was never traced. Without examinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is very much clear that all the appellants are involved in the smuggling of the goods and they are liable for the penalties under Section 112(a) and 112(b) of the Customs Act and the adjudicating authority has rightly imposed the penalties on the appellants. 14. Heard both sides and perused the records. 15. On careful examination of the submissions made by both the parties, I find that it is a clear-cut case of smuggling of goods in the name of innocent passengers. Shri. Vivek Dutta in his statement has also admitted that ten days back he has also cleared a refrigerator of one of the clients of Shri Sanjay Nair which clearly throws light on the involvement of the appellants in smuggling of the goods. The main argument of learned Advocate is that retraction was made to the confessional statement of the appellants and in that event without any independent corroborative evidence, penalties cannot be imposed. I find that the documents through which Shri Vivek Dutta tried to clear the goods having forged signatures of Shri. Sarwar Husain Sagir Husain without his knowledge and on opening of the refrigerator, it was found it contains 12 pockets of gold jewellery, clearly shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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