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2019 (9) TMI 289

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..... purported confessional statement. Though doubts are sought to be cast on the retraction, it may not be easily discardable. The acceptance of the shipping bills and the conclusion that the bills of entry were mirror images fortifies the claim of the appellant for eligibility to drawback under section 74 of the Customs Act, 1962. In these circumstances, the motive distances itself from the method and without motive there can be no offence. The adjudicating authority has placed overwhelming reliance on the statement of the Director and as the retraction of that statement has not been taken into consideration, we are of the opinion that the adjurement in KI. PAVUNNY VERSUS ASSTT. COLLR. (HQ.) , C. EX. COLLECTORATE, COCHIN [ 1997 (2) TMI 97 - SUPREME COURT] mandates independent corroboration. The declaration in the shipping bill, according to us, in the absence of any other evidence must be accepted as truthful assertion of the contents therein - In view of the absence of any evidence of the imported goods being nothing other than licence stickers or licences, we are not inclined to agree that the motive for such an elaborate exercise has been established. Appeal allowed - dec .....

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..... ed for export to their customers as permission for the use of customized software developed from the XPE embedded software imported on the earlier occasion. According to them, software is customized to render it suitable for specific end use such as automated teller machines etc and that, on receiving payments from these customers, the authorization for downloading of the customized software would be provided. To enable this to be put to use, the stickers and licence used to be dispatched through the air cargo complex and that, at times, one disc with the same software would be sent. It would appear that the presence of the disc in the export consignment which was co-related with the relevant import consignment led to the conclusion that these very discs had been imported in the first instance in recorded form and hence not classifiable under heading 4907 of the First Schedule to Customs Tariff Act, 1975. Relying in large measure on the statement of Shri Aditya Bhuwania, Director of M/s Priya Limited, that confessed to import of software in individually recorded disc which were then re-exported, the original authority confirmed the demand. 3. The adjudicating aut .....

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..... CDs as declared in the various shipping bills within the weight of the imported packages. It is her contention that, at best, the export consignment could contain one disc as back up in the event of failure to receive the link for downloading of the customized software. She also informs that the customization in the present instance cannot be questioned because components of the entire software that is already in their possession are isolated and made specific to the respective clients. According to her, with the exemption accorded by notification no. 12/2012-CE, to which they were entitled, there would be no reason for them to take shelter under an alternative heading. According to Learned Authorised Representative, the statement of the Director of the importing-company which has admitted to the mis-declaration and has confirmed the various acts of omission and commission made with that intent needs no further corroboration. It is also submitted that the deposit of a substantial portion of the demand by the appellant during investigation attests to the genuineness of this admission. Learned Counsel, however, submits that the deponent of the statement had retracted it before a not .....

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..... sion of the Hon ble Supreme Court in KI Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin [1997 (90) ELT 241 (SC)], in which the rival contentions were substantially the same, and which has held that 25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is tru .....

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