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2016 (4) TMI 607 - CESTAT CHENNAI

2016 (4) TMI 607 - CESTAT CHENNAI - TMI - Whether guilty of fraud - Export of red sander, prohibited goods - Mis-declaration as gypsum board - Held that:- evidence gathered under section 108 of the Customs Act, 1962 is not from an accused or accused person. The words ‘accused’ or ‘accused person’ is used only in a generic sense in law. Recording of the proceeding by customs being pre-accusation stage that is not extracted from an accused. Therefore, customs officer is not a police officer as is .....

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EME COURT OF INDIA]. The 108 statement resulted in confiscation of the red sanders discovered from the cavity on the gypsum boards was sufficient a proof which could be instrumental to trace the appellant. It is also settled principle of law that even if the confession is retracted the time within which such retraction has been made and the veracity of the retraction play a vital role for believability thereof. Confession binds the author and against whom the deposition has been made. - The .....

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X, Collectorate of Cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA]. The evidence on record having probative value it is the objective evaluation thereof applying relevant test, finding has been reached. There is neither any surmise nor suspicion that can be attributed to investigation. They made their story very successful. No fancible reason has been assigned by them. The issue germane from the root of the matter and has been well tested by the investigation. Reason being soul of the law they .....

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roved that the appellant was contributory to the fraud committed against customs. It is established principle of law that fraud and justice are sworn enemies. The smuggling racket perpetuated smuggling for many years in the past as is revealed from their conduct. - Decided against the appellant - C/00026/2008 - FINAL ORDER NO. 40598 / 2016 - Dated:- 11-4-2016 - SHRI D.N. PANDA, JUDICIAL MEMBER For the Appellant : Shri B. Satish Sundar, Adv. For the Respondent : Shri B. Balamurugan, AC (AR) ORDER .....

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ellant, this Court is of the view that the order passed by the appellate authority is not factually and legally sustainable and the same is liable to be set aside and the matter is liable to be remitted to the file of the appellate authority for considering the matter afresh on the basis of the facts mentioned supra. Since the matter is liable to be remitted to the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, the substantial questions of law settled .....

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nal Bench, Chennai is strictly directed to consider the factual aspects putforth on either side and also consider recent decisions rendered by the Hon ble Apex Court and pass suitable orders on merits. Consequently, connected Miscellaneous Petition is dismissed. 2.0 In pursuance to the above directions of the Hon'ble High Court the appeal was heard and proceeding was recorded on 22.2.2016. 3.0 Investigation made allegation against the appellant noticing him to be involved with one Alexander .....

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h basin to Singapore in the name of M/s. Gilba Agencies, Tuticorin. In the month of February 1997, the sandalwood sent by Shri Santhanameeran to him from Chennai for export through Tuticorin, was seized by Customs officers for which he suffered penalty of ₹ 10,00,000/- and has become defaulter to discharge such penalty. 3.2 While smuggling sandalwood as stated above, Shri Alexander came in contact with Shri Manivannan (Appellant) of Perambur, Chennai through Shri Santhanameeran. Appellant .....

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reached the godown of John Alexander at Sugar mill Colony in Tirunelveli. He told Alexander to export such red sander woods to the addressee in Malaysia. For such act, Manivannan agreed to pay ₹ 2 Lakhs to Alexander towards consideration. Out of such consideration, advance of ₹ 1 lakh was paid to him. ₹ 40,000/- was paid in cash and ₹ 60,000/- was transferred to his ICICI Bank Account. 3.4 After the arrival of the cargo, cutting out the inner portion of some of the gypsum .....

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of Customs Officers to obtainlet export order. 3.5 The red sanders hidden as above in gypsum board were sent toone M/s Raja Agencies CFS meant for export to Malaysia and Shipping Bill No. 1590098 dated 24.03.2006 was filed by Alexander in that behalf at Tuticorin Custom House on self assessment basis declaring that 104 crates of gypsum boards meant for export to Malaysia by M/s Freedom Impex, Tuticorin. Cargo was examined by Customs at M/s Raja Agencies CFS on 24.03.2006 and let export order wa .....

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nder the instructions of the Appellant. Such goods are prohibited goods rendering that liable to confiscation under Section 114 (d), 113(e), 113(h) and 114(i) of the Customs Act, 1962. The gypsums board and other packing material having been used as cover in the cargo to conceal the offending goods (Red Sanders) were also liable to confiscation under section 119 of the Customs Act, 1962. For such act of attempt to export prohibited goods penalty proceedings were also liable to be initiated. 4.0 .....

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packing materials totally weighing 6.318 MT valued at ₹ 0.88 lakhs were in the consignment. All such goods were seized under a mahazar dated 25-03-2006. Such fact remained uncontroverted before the Adjudicating Authority. 4.1 The State Forest Officialswhen examined the offending goods found from the cavity of the gypsum boards, they reported that to be Red Sanders wood pieces . That corroborated with John Alexander s deposition made on 26.3.2006. 4.2 When John Alexander was examined on 26 .....

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to him for export;(v) during the last week of January he kept the red sanders underneath the gypsum boards in the godown taken on rent by him in Sugar Mill Colony in Tirunelveli and attempted to export that to the buyer in Malaysia as informed to him by appellant,through Tuticorin Port without anybodys knowledge for a monitory benefit of ₹ 2 lakhs; (vi) he covered the red sanders wood with newspaper making cavity in the gypsum boards and covered the same by gypsum board without cavity. (v .....

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the detailed examination conducted by the investigating officers at Raja Agency CFS found 1500 Nos. of red sander in three shapes weighing 1.650 MT were attempted to be exported in the guise of gypsum boards used for concealment and those boards were also seized; (xi) he knew that export of red sanders is an offence under the Customs Act; (xii) he confirmed the photograph shown to him by investigation was of Shri Manivannan of Perambur, Chennai, and admitted the Offence committed by him. All suc .....

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for export under the EXIM Policy)to John Alexander, for export thereof to the buyer in Malaysia through Tuticorin Port. 4.5 On the above facts, adjudication was completed holding that the act of supplying the prohibited item viz. red sanders by the appellantfor illicit export out of India were liable to confiscation and penalty under Section 114 of the Customs Act, 1962 was imposed on him. Similarly John Alexander of M/s Freedom Impex, Tuticorin was made liable to a penalty under Section 114 of .....

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pping Bill No.1590098 filed byM/s.Freedom Impex through its Proprietor John Alexander for export of goods i.e., 104 crates of Gypsum Boards in Container No.CRXU169704-8 from M/s. Raja Agencies, CFS, Tuticorin. 32-48 2 24.03.06 Examination of the above container undertaken by Officers of the D.R.I, Tuticorin at about 2100 Hours. John Alexander is present. Examination of the cargo reveals that there may be Red Sanders concealed besides the normal cargo. As it was getting late, further examination .....

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o incriminating materials seized 51-53 5 26.03.06 Statement under section 108 of the Customs Act, 1962 recorded from John Alexander * He details how came into contact with Appellant Mannivannan * How Mannivannan sent a contraband. * What was the remuneration given by Appellant for the work. He states that the total remuneration was ₹ 2 lakhs out of which Manivannan sent ₹ 40,000/- through a person who came with the Red Sanders in the Lorry and Manivannan deposited 60,000 into ICICI B .....

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d is residing at Perambur High Road having a Government manufacturing factory. He also states that he does not know the contact phone number of Manivannan. 54-61 6. 27.03.06 John Alexander arrested by the officers of D.R.I. at about 0700 Hours. 57 7. 27.03.06 John Alexander remanded to Judicial custody before Judicial Magistrate, Tuticorin at about 11.50 pm till 07.04.2006. 61 8. 29.03.06 Discreet Inquiries made by D.R.I Chennai as to whereabouts of Appellant and his business. 62 9. 29.03.06 Sea .....

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of prospective groom for his daughter. He denies the statement of John Alexander dated 26.03.2006 and says that he has nothing to do with the seizure of Red Sanders logs from Freedom Impex with John Alexander. 66-72 11 31.03.06 Search of premises of NKR Corporation, Rajan Apparels and Godown of NKR Corporation. No incriminating materials. Register showing stock of Red Sanders musical instruments parts, powder and chips seen by Officers of D.R.I. The stock in the godown was found to tally with t .....

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26.03.06 and identifies one Computer generated printout claim to be the photo of Appellant. 94-96 16 19.06.06 Third statement recorded from the Appellant. It is one of denial. 98-99 17 19.06.06 The Appellant arrested and remanded to judicial custody. 100 18 23.06.06 Bail Application of Appellant. 111-113 19 04.07.06 The Appellant detained under COFEPOSA and his detention is challenged by filling Habeas Corpus Petition in High Court, Madurai Bench 114-129 20 25.09.06 High Court disposes of the ab .....

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material to connect the Appellant to the transaction. 133-135 23 30.10.07 Second reply to the Show Cause Notice. 136-137 24 30.11.07 Order in Original passed. 138-148 25 01.02.08 Appeal filed to this Honble Tribunal. 1-12 26 17.03.10 Tribunal rejects the appeal in Final Order No.322/2010. 27 June-10 CMA filed before the Honble High Court of Madras at Madurai Bench. 28 25.08.10 High Court admitting the appeal grants interim stay on the condition that the Appellant deposits 50% of the penalty a .....

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rs asGypsum Boards, since he was not exporter. He hadnever arranged supply thereof to the exporter.When the Tribunal did not consider material evidence as to whether the appellants involvement was corroborated by Revenue by any other evidence other than the statement of co-accused and whether the exculpatory statement of the appellant has credence,appellant approached Hon ble High Court of Madras in CMD (MD) 116 raising following two questions for answer and such questionsfind place in para 4 o .....

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patory statements of the Appellant, which are on record in juxtaposition to the so called confessional and voluntary statements of the said John Alexander? 5.2 Further submission on behalf of appellant was that the statement of the co-accused was derived under duress,stress and strain during his detention initially by DRI and thereafter under COFEPOSA. That does not lend any credence to frame charge against the appellantbeing recorded during detention. Tribunal in earlier occasion did not find a .....

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y value of the statement of the co-accusedand exculpatorystatement of the appellant. 5.3 It was further submitted on behalf of appellant that if a fair reading of statement of John Alexander is made that brings out the innocence of the appellant and because Revenue found the export misdeclared that shall not ipso facto create an evidence against the appellant. Revenue has failed to bring the sourceof procurement of red sander as well as mode of delivery of the goods by the appellant to Alexander .....

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were not at all brought to the fold of law. Therefore, statement of co-accused shall not bind the appellant to charge and no penalty under Section 114 (i) of the Customs Act, 1962 is imposable on the appellant. 5.4 It was further submitted on behalf of the appellant that even though this appellant was arrested under COFEPOSA,that did not sustain after the Advisory Committees report finding the appellant innocent and he was released.All such groundsare enough to exonerate the appellant from pen .....

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T. 309 (S.C.). (ii) Vinod Solanki Vs Union of India reported in 2009 (233) E.L.T.157 (S.C.). (iii) Santosh Pandurang Patil Vs Commissioner of Customs, Tuticorin reported in 2009 (234) E.L.T.455 (Tri.-Chennai). (iv) Commissioner of Customs (Imports),Chennai-I Vs Sainul Abideen Neelam reported in 2014 (300) E.L.T.342 [Mad.]. (v) Shri Vinod Kumar Jatia Vs Union of India reported in 2014 (303) E.L.T. 532 (Del.). (vi) Ashwini Kumar Tandon Vs Commissioner of Customs (Preventive) reported in 2014 (305) .....

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ich was followed by High Court of Madras in Commissioner of Customs (Imports), Chennai-I Vs SainulAbideen Neelam reported in 2014 (300) E.L.T.342 (Mad.)for defence of the appellant. 5.7 Summarily it was submitted by the appellant that law is well settled that mere statement of the co-accused does not become credible evidence against any other accused. This is golden rule of criminal Jurisprudence.That is even extended to Customs proceedings in penalty cases which is quasi-criminal in nature. The .....

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our.Circumstances of commitment of offence speak for itself as to the involvement of the appellant in red sander smuggling. 6.1 To support the case Revenue, learned departmental representative relied on the decision in the case of Naresh J. Sukhawani Vs Union Of Indiareported in 1996 (83) E.L.T.258 (S.C.). According to Revenue,had this appellant been innocent, he would not have attached himself consciously to the offencesupplying the offending goods to Alexander nor been in close association wit .....

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offence by Shri John Alexander and perpetuated smuggling. Therefore appropriate penalty was levied in adjudication. 7.0 Heard both sides and perused the record. 7.1 It is an established fact on record that from the consignment loaded into the Container No.CRXU-169704-8 on 24.03.2006 investigation recovered 1500 numbers Red Sanders, hidden in the cavity created in Gypsum Boards packed in 94 packages. Such goods are prohibited goods for export out of India. One John Alexander attempted to export .....

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y or for the sake of naming him to escape Investigation. Investigation discharged its burden of proof proving the case form the stage of discovery of the red sander sent by the appellant till discovery thereof from the cavity of the gypsum board sent by appellant to Alexander. Accordingly appellants involvement in the smuggling of redsander was alleged. 7.3 Alexander appeared to be man of no means and was not in position to make heavy investment in procurement of the offending goods. Therefore .....

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nameeran of Chennai to exportsandalwoods. His contact with appellant was established through Shri Santhanameeran for export of the offending goods. Alexander categorically revealed that he was conduit for the appellant for the aforesaid consideration. Address of the importer in Malaysia was given by the appellant to Alexander. Such fact could not be ruled out by appellant in the course of appeal hearing. He also specifically stated before investigation that the Red Sanders were concealed in the .....

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during recording of the statement under section 108 of the customs Act, 1962 was not challenged to rule out binding nature thereof. He revealed name of the appellant every time repeatedly and unequivocally. His acquaintance with the appellant came to record confirming his photograph when that was shown to him by the investigation in Jail. He never retracted his depositions given to Customs before the Magistrate when he was produced before the Court for trial. His depositions were therefore belie .....

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investigation that having incurred huge loss in his garment business, he found that export of Red Sanders was easy mode to recover the loss. Accordingly he had exported Red Sanders in the name of M/s. N.K.R. Corporation from Chennai Port in the past. He also failed to rule out his intimacy with John Alexander of Tuticorin. Even though he attempted to detach himself in his statement from the attempted export of offending goods, he failed when entire governing facts and attendant circumstances im .....

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s credible. No doubt, John Alexander was co-accused and his statement was used against the appellant. But his statement was so credible and believable being recorded before the jail authority, contents thereof were not baseless. Accordingly his truthful statement cannot be brushed aside when nothing was retracted before Magistrate when he was produced for trial. The manner of recording of the evidence from John Alexander was also so fair, that was free form doubt. He was not at all hostile to th .....

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premises of Alexander. Law is well settled that evidence gathered under section 108 is credible and cogent and can be used against the author of the statement as well as against others. There is no material to show that belated retraction was made by appellant honestly and truthfully. In his statement dated 31.03.2006, appellant had also disclosed the source of procurement of Red Sanders in the past. Accordingly his dealing with the Red Sanders was nothing new. Various direct and circumstantial .....

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able, the law, accepts for it, probability as a working substitute in jurisprudence and prosecution is not required to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent mans estimate as to the probabilities of the case. The other cardinal principle having an important bearing o .....

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urement successful for his ill gain and employed Alexander as his conduit for export thereof. Attempt to export was made with hand in glove. Secrecy and stealth being covering guards of ill designed act, it is normally a hard task for Revenue to unravel every link of the process. However Revenue could successfully place circumstantial corroborative evidence to discard innocence of the appellant who proved his malafide submitting himself to the attempted export of prohibited goods. 8.2 Many facts .....

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nce of probabilities. In a civil case there is no burden cast on any party similar to the one in a criminal proceeding. Following the ratio laid down in CIT v. Durga Prasad More - 82 ITR 540, 545-47 (SC) it may be said that Science has not yet invented any instrument to test the reliability of the evidence placed before a Court or a Tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to reliab .....

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e belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. The court applies this test for finding whether a fact in issue can be said to be proved. 8.4 When fraud surfaces, that unravels all. Revenue s stand .....

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the perpetrators of the offence were in close connivance. The Apex Court in the case of S P Chengalavaraya Naidu v. Jagannath - AIR 1994 SC 853 and in the case of Ram Preeti Yadav v. UP Board of High School and Intermediate Education - AIR 2003 SC 4268 has held that no court in this land will allow a person to keep an advantage which he obtained by fraud. 8.5 When the material evidence established fraud against Revenue, white collar crimes committed under absolute secrecy shall not be exonerated .....

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e of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It has been held by Apex Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) that by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. Th .....

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shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false . This aspect of the matter has been considered by Apex Court in Roshan Deen v. Preeti Lal [2002 (1) SCC 100] Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [2003 (8) SCC 311], Ram Chandra Singhs case and Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]. Suppression of a material document would als .....

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t in the case of Haroon Haji Abdula Vs. State of Maharashtra - 1999 (110) ELT 309 (SC)to submit that evidence of the accomplice should be corroborated. There is no doubt to the proposition that confession of a co-accused should not be sole basis to convict an accused. There should be other corroborative evidence on which the charge can be based. That evidence is referable if that gives some assurance to the establishment of the charge. In the present case, it is not only the statement of Alexand .....

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9.1 Reliance of the appellant on the decision of the Hon ble Supreme Court in the case of Vinod Solanki Vs. Union of India - 2009 (233) ELT 157 (SC)was placed to submit that the evidence recorded from Manivannan forcibly does not stand to speak against the appellant. There is no proof this proposition. Alexander was not at all under any pressure, undue influence or coercion to depose before customs officers. His statements were so clear that indicated his refreshed mind at all times of depositio .....

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r of Customs - 2009 (234) ELT 455 (Tribunal) was made to submit that penalty cannot be imposed without proving the financial transaction. This submission fails to stand for the reason that the appellant was a main perpetrator of smuggling making Alexander an abettor to such an evil as has been revealed from governing facts and circumstances of the case. Therefore, commitment of offence even without money trail is enough when conscious breach of law is patent. 9.3 Appellant also relied on para 14 .....

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the statement recorded under section 108 of the Customs Act, 1962 is binding on the appellant. The appellant did not cooperate to investigation on few occasions when summon was issued against him, apprehending his guilt. Such an approach of appellant speaks his contumacious conduct trying to escape from the tests of the evidence gathered from Alexander. Therefore, he fails to be benefitted from the judgment. Appellant when failed to rule out that the evidence gathered from Alexander is inadmissi .....

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se. They seriously examined the material facts, situation as well as evidence threadbare that surfaced. They found that the offending goods were arranged and transported by appellant from a different place to reach to the godown of Alexander and the owner of the goods was the appellant. Therefore, it is not merely the statement of Alexander that imputed him to charge but also conscious, active and deliberate involvement of appellant implicated him to the charge. 9.5 Appellant further relied on t .....

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ty made therein. Nowhere Alexander made a complaint as to his mental torture or harassment even when he was produced before the Magisterial Court under COFEPOSA. Therefore, his evidence cannot be mutilated for the pleasure of the appellant to claim innocence. He was not an innocent. But an investor of offending goods. 9.6 Appellant further relied on the decision of the Apex Court in the case of A. Tajuden Vs. Union of India - 2015 (317) ELT 177 (SC) to submit that mere oral statement of Alexande .....

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d under section 108 of the Customs Act, 1962 is not from an accused or accused person. The words accused or accused person is used only in a generic sense in law. Recording of the proceeding by customs being pre-accusation stage that is not extracted from an accused. Therefore, customs officer is not a police officer as is defined under Evidence Act and Code of Criminal Procedure. Accordingly, appellants plea that the exculpatory statement of the appellant has credence in evidences does not sou .....

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Magistrate. But a customs office does not do that. Therefore, the statement recorded from Alexander was examined in the course of discharge of duty by a customs officer. That cannot be presumed to be done by a police officer. There was no force or coercion used by the investigating authority to examine him. Therefore, his statement can be used against appellant when that showed path to investigation to trace the source of the goods. 10.1 Further, a Customs officer not being permitted to file a c .....

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of the red sanders that itself proved his involvement which was not ruled out by him since Alexander became abettor for export of his goods. Commitment of the attempt to export red sanders out of India was the perpetrated design of appellant who provided the address of the importer. 10.2 The statement made by Alexander inculpating the appellant could be used against him as substantive evidence following the ratio laid down by the Honble Supreme Court in the case of Naresh J Sukhawani Vs. Union .....

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