TMI Blog2001 (6) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... and do not say anything special except stating that they were not in any way concerned with the silver smuggling and their statements were taken by coercion and also there is one more panchanama under which their names were not found. I have considered their arguments carefully. The accused were presented before the Hon'ble Special Judge for Economic Offences Court in the afternoon of 29-8-1992 and in such a fashion an opportunity was given to them. But, they did not retract their statements before the Hon'ble Judge. Their explanation of threat of being detained under COFEPOSA was untenable inasmuch as there was every scope for them to be not detained in COFEPOSA had they made clear to the Hon'ble Judge about the recording of the statements by coercion and thereof. Hence, I take their retractions as after thought. Even their spouses gave the telegrams on only 1st September 1992 even though there is every opportunity for them on 29th, 30th, and 31st itself. The telegraph office works on holidays also. Now, coming to the Mahazar said to have been drafted first I do not accept their arguments because it was not signed by any of the departmental officers and it perhaps be prepared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not directly dealing with the business and that he was not fully aware of the day to day business. He further stated that on 28-8-1992 at about 7.30 AM two jeeps came and delivered 23 silver bars to the Swastik Refinery and that his cousin Kirit Parekh is supervising the Refinery. He was incidentally present in the Refinery and his cousin told him to remove the contraband silver bars and transport the same to the residence of Pawan Kumar and in the meanwhile officials came and seized the goods. It was alleged that these two persons had abetted in the removal of these 23 contraband silver bars and amongst other persons, a case has been made out against them as also including on Vishan Singh alias Tippu Soni. Tippu Soni has not appeared for cross-examination as requested by the appellants nor has he filed reply to the show cause notice. It appears that he has not filed any appeal before the Tribunal. In his statement before the Investigating Officers he stated that he came to know about the seizure of contraband silver on the evening itself through his wife at about 7 PM, that he received a phone call from Gwalior on 27-8-1992 in the late night at about 11 PM that his brother-in-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Special Judge in the same para at page 19 wherein it is recorded that the official witness stated that the words J.T.M. itself disclose that silver bars do not contain the foreign marking. The learned Judge also accepted the evidence produced by the accused to show that silver with purity of 999 and weight of 32 to 37 kgs is manufactured at Hyderabad and exported the same to Switzerland that to M/s. Credit Suisser by Airway Bill. The learned Judge after detailed analysis of the evidence available on record has come to a clear cut finding that the seized silver bars were not of foreign origin and smuggled into the country and the department has not proved the charge. 6. The learned Counsel submitted that in a similar case the Tribunal have accepted the judgement of the Special Judge of Economic Offences and acquitted the person involved in that case under the same Act. In support of this submission, he relied upon the judgement of the Tribunal in the case of Tulsidas V. Patel v. CC., Bombay reported in 2000 (119) E.L.T. 616 (Tribunal) which has relied upon a large number of earlier judgements including the judgement of the Madras High Court. He also referred to Final Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mention of foreign origin of the silver. The assayer who examined the silver bars has also not stated that the seized silver had any foreign markings. There is no finding in this regard by the Commissioner. Even independently considering the assayer's statement, we are of the considered opinion that the assayer has not stated about the foreign origin of the silver bars and the country to which they belong. The learned Special Judge has in his findings recorded that silver with purity of 999 and weight of 32 to 38 Kgs bars is manufactured at Hyderabad and exported. In the present case, the assayer has only stated about the purity of the silver and this itself cannot be a ground to consider that the silver bars are of foreign origin. Kirit Parekh and Pankaj Parekh who are partners of the Refinery have clearly disowned the silver sent by Tippu's wife and returned it. Vishhan Singh alias Tippu in his statement has clearly stated that he had gone to Gwalior because of the death of his brother-in-law. He has stated that he was in touch with his wife, after coming to know of the seizure of the silver bars in question, he was terribly afraid of coming back to Hyderabad and he was traced by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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