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2016 (5) TMI 501 - CESTAT KOLKATA

2016 (5) TMI 501 - CESTAT KOLKATA - 2016 (340) E.L.T. 590 (Tri. - Kolkata) - Whether clothes seized by the department were meant for export to Nepal illegally - the evidences that seized goods were meant for export, are the statements of the driver of vehicle and the helper. These statements, as brought out in the SCN, convey that goods were to be taken to Nepal through bullock carts and that goods of similar nature were brought regularly and transported to Bargania by them at an average of 12-1 .....

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arding licit acquisition of seized goods were not at all investigated by the department. - So, in the absence of any other corroboration, the statements of co-accused driver and helper cannot be made the clinching evidences to decide the case against the appellants. There is also no evidence on record whether the seized goods were actually moving towards the border. Rather as per the statements of the driver and the helper also the goods were being taken to Bairgania where claimant M/s. Shy .....

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ner : Sri N. K. Choudhary, Advocate For the Respondent : Sri S. N. Mitra, A.C. (A.R.) ORDER Per Sri H. K. Thakur These appeals have been filed by the appellant against Order-in-Appeal No. 756-760/Pat/Cus/Appeal/2014 dated-23/07/2014 passed by Commissioner (Appeals) Patna as first appellate authority. Under this O-I-A dated 23/7/2014, Commissioner (Appeals) has upheld Order-in-Original No. 05-CUS/ADC/MTH/2014 dated-25/4/2014 passed by the Adjudicating authority. 2. Shri N.K. Choudhary (Advocate) .....

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Learned Advocate that officers of E Coy 13th BN SSB Pantoka intercepted one mini truck BR 05 G 2552 loaded with bundles of clothes and was found moving towards Motihari. That during checking of vehicle one bill No. 733 dated 11/12/12 was recovered from the vehicle and it was issued by M/s. Vinayak Vastralaya, Inder Chowk, Kathmandu. That though this document was issued in Nepal but para 4.6 at page 10 of the Order-in-Original refers it to be issued by Mehak Enterprises, Ludhiana to Vinayak Bast .....

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to the godown of Shri Bhola Shah at Bairgania and would then be exported to Nepal through Bullock carts.That they have transported such goods on regular basis for about 12 to 15 times in a month. That both the driver and the helper did not have any personal knowledge of the goods being sent to Nepal and their statements have to be considered only a hearsay evidence. That the source of information of goods to be sent to Nepal has not been disclosed by the driver and the helper. That on 17/4/13, t .....

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to export of seized goods to Nepal except the statement of driver and helper of the seized vehicle. Learned Advocate made the bench go through para 19 of the Apex Court s decision in the case of Mohtesham Mohd. Ismail Vs. Special Director, Enforcement Directorate [(2007) 8 Supreme Court cases 254] to argue that a confession of a co-accused person cannot be treated as a substantive evidence and is acceptable only when other evidences also suggest the act. That in the present proceedings there is .....

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s (Prev.), Kolkata Vs. Md. Abdul Salem -2005 (186) ELTY 293 (Tri.-Kol.) (ii) Commr. of Customs, W.B. Vs. Swapan Kr. Debnath -2002 (148) ELT 840 (Tri.-KOl.) (iii) Md. Latibur Rahaman Vs. Commr. of Customs (Prev.), West Bengal, Kolkata -2004 (171) ELT 65 (Tri.-Kol.) (iv) Collector of Customs (Prev.), West Bengal Vs. Kamala Ranjan Saha 2003 (161) ELT 1047 (Tri.-Kolkata) (v) State of Maharashtra-Vs.-Mohd. Yakub- 1983 (13) ELT 1637 (S.C.) (vi) Mohtesham Mohd. Ismail-Vs.-Spl. Director, Enforcement Dir .....

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. That document No. 733 recovered from the vehicle indicated Vinayat Vastralaya, Kathmandu, Nepal which means the truck was otherwise going to Nepal. That in the statement, driver and the helper has stated that they undertake such trips 12-15 times in a month. That no cross examination of driver/helper of the vehicle was sought by appellants. That documents produced by appellant Ram Chandra Kandoi were without signature and issue date and were not found acceptable by the Adjudicating authority i .....

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of the appellants:- Heard both sides. I find that the Ld. Adjudicating Authority observed in para 4.01 of his order that a bill bearing No. 733 dated 11.12.2012 issued by M/s. Vinayak Vastralya of Kathmandu was recovered at the time of seizure and no other documents were produced. The appellants later on disowned the said Bill No. 733. However, I hold that disowning the bill simply does not prove that the goods were not meant for illegal export. I hold that the disowning the bill simply does no .....

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r (Noticee No. 1 & 2 to the show cause notice). These statements, as brought out in para 2 & 3 of the SCN dated 26/9/2013, convey that goods were to be taken to Nepal through bullock carts and that goods of similar nature were brought regularly and transported to Bargania by them at an average of 12-15 times a month . The place Bargania is the place where owner of the goods Shri Ramchandra Kandai is trading in clothes. In para 5 of the SCN it is mentioned that Shri Ranjit Kumar (Helper) .....

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not at all investigated by the department. 4.2 On the issue of confession of a co-accused, Apex Court in the case of Mohtesham Mohd. Ismail-Vs.-Spl. Director (supra) made following observations: Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the cour .....

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08 of the Customs Act can be the basis of conviction of other co-accused . The Learned trial Court has rightly held that statement of co-accused under Section 108 of the Act against the co-accused is a weak type of evidence and conviction of co-accused cannot be based on the uncorroborated statement of co-accused. Counsel for the appellant (Customs) is fair enough to concede that there is no corroborative evidence against Amrik Singh @ Chamku and Balwinder Singh for warranting their conviction u .....

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