2009 (8) TMI 901 - AT - Customs

Summary

Issues involved: Confiscation of silver worth Rs. 2,04,700/-, imposition of penalties, retraction of statement by appellant Shri Shrawan Sah, cross-examination of panch witnesses, reliance on confessional statements, dispute over place of recovery of silver.

The appellants challenged a common impugned order where silver worth Rs. 2,04,700/- was confiscated and penalties were imposed. The Revenue alleged that appellant Shri Shrawan Sah attempted to smuggle silver across the Indo Nepal Border, which he admitted in a statement under Section 108 of the Customs Act, 1962. Another appellant, Shri Laxmi Prasad, claimed ownership of the silver intended for smuggling to Nepal, leading to confiscation and penalties.

The appellants contended that Shri Shrawan Sah's statement, recorded on two occasions, was retracted and should not be the basis for confiscation. They argued that Shri Shrawan Sah was actually apprehended at Raxaul Bus Station, not the Land Customs Station as claimed by the Revenue. The appellants requested cross-examination of panch witnesses to verify the place of apprehension, but this was denied. They emphasized the importance of considering the retraction and cited a Supreme Court decision in Vinod Solanki v. Union of India.

The Revenue relied on a Supreme Court decision in Surjeet Singh Chhabra v. Union of India, asserting that cross-examination of recovery witnesses is not essential and that retracted confessional statements can still justify confiscation. However, the facts of the present case differ from the case cited by the Revenue, as the location of silver recovery is disputed. The appellants claim it was seized at Raxaul Bus Station, while the Revenue asserts it was seized at Customs Land Station. Given this discrepancy, the Tribunal deemed cross-examination of panch witnesses necessary for a fair decision.

The Tribunal set aside the impugned order and remanded the matter to the adjudicating authority for a fresh decision after allowing cross-examination of panch witnesses and providing the appellants with a personal hearing opportunity. Both parties were permitted to present their arguments during the hearing. The appeals were allowed by way of remand.