TMI Blog2002 (7) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... /-, UAE Dirhams 1,04,000/-, Kuwait Dinars 3,765/-, Omani Riyals 660/-, Bahrain Dinars 830/- and Qatar Riyals 17,200/-. 2.Shri Philip Fernandes in his statement recorded under Section 108 of the Customs Act, 1962 on 15-3-1998 deposed that he was working in Abu Dhabi as an engineer for the National Drilling Company for the last 18 months; that his work schedule involved four weeks work and four weeks off during which he gets a paid ticket to Bombay. Regarding assorted foreign currencies under seizure Mr. Philip stated that the same was purchased by him from one Shri 'Paras' of Fort area in a span of 25 to 30 days at different rates. The telephone numbers of Shri Paras, as stated by Philip were 2690727 and 2614168. Mr. Philip further stated that in all he paid approximately Rs. 86 lakhs to Shri Paras and that the said amount of Rs. 86 lakhs was received by him from one Shri Nilesh Popat from time to time for purchasing the said foreign currency from illicit market; that he was instructed by Nilesh Popat to carry the subject foreign currency to Dubai and from there to send the entire amount to Shri Kirit Popat, brother of Nilesh Popat in Los Angeles (UA); that Shri Nilesh Popat had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an equivalent of Rs. 85 lakhs to his brother Nilesh Popat in Mumbai. Accordingly, he paid Shri Nilesh Popat in all Rs. 85,49,000/-; that Rs. 49,000/- was the amount he was supposed to pay to Shri Kirit Popat for supply of poor quality diamonds. Shri Praveenbhai Kheni further identified Nilesh Popat as the same person whom he had given Rs. 85,49,000/- in instalments as per the instructions of Nilesh's brother viz. Kirit Popat who stays in USA. 5.S/Shri Philip Fernandes, Nilesh M. Popat and Praveenbhai Kheni were arrested on 16-3-1998. All of them retracted their statements in the Court and the same were duly rebutted by the department and were taken on record by Court. Shri Paras could not be apprehended and hence his evidence could not be brought on record. The enquiries made regarding the telephone numbers of Shri Paras as given by Mr. Philip, revealed that the same were owned by one Shri Babulal Nemchand Jain who was dealing in automobiles spares from his shop named as M/s. Paras Scooter Parts and no one by name 'Paras' was available at the said shop. 6.Show cause notice dated 10-9-1998 was issued requiring Philip Fernandes, Shri Nilesh Popat, Shri Praveenbhai M. Kheni and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanger's certificate. 11.The learned DR made an attempt to argue that the currency recovered from Shri Philip Fernandes was not the same which he might have brought into India with him from Dubai. However, we see no force in this plea for the reason that no such plea has been raised in the appeal of the Revenue and further there is no basis for that submission. 12.The Revenue urges us to discard the bank statement produced by Shri Philip Fernandes as proof of substantial withdrawals and the certificate of the money changer on the ground that the same were not forwarded with the covering letter confirming the contents thereof and further for the reason that the same were not received in response to the department's letter. These two reasons are no ground for us to doubt the veracity and authenticity of the moneychanger's certificate, all the more when the adjudicating authority caused enquiries to be made and has accepted the certificates only after satisfying himself on verification. We also note that Philip Fernandes had retracted his statement on 16-3-1998 itself i.e., immediately after his statement was recorded under Section 108 of the Customs Act, 1962 on 15-3-1998 and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been shown to Shri Philip Fernandes at the time of recording his initial statement on 15-3-1998, which is an impossibility. It is in the statement of Shri Nilesh Popat that Shri Pravinbhai Kheni comes into picture. Shri Popat has retracted his statement on 3-5-1998 where he has specifically mentioned about Shri Fernandes's claim of licit acquisition of the foreign currencies seized from him on 15-3-1998. In the present case documentary evidence in the form of certificate of Thomas Cook Al Rostamani, Dubai certifying purchase of foreign currencies in Dubai by Shri Fernandes runs contrary to the oral evidence in the form of statements of Shri Fernandes, Shri Nilesh Popat and Shri Praveenbhai Kheni. It is well settled that when the statements recorded under the provisions of Section 108 of the Customs Act, 1962, (which are retracted), are inconsistent with the documentary evidence, the documentary evidence is to be preferred. This is the view expressed by the Tribunal in the case of R.P. Industries v. Collector of Customs - 1996 (82) E.L.T. 129. Although in that case the documentary evidence was seized during the search that would not alter the position in this case since the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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