1983 (5) TMI 251 - AT - Customs

Summary

Issues Involved:

1. Voluntariness of the appellant's statement.
2. Validity of trade opinion and opportunity for cross-examination.
3. Burden of proof regarding the illicit import of silver.
4. Credibility of the appellant's explanations and defenses.

Issue-wise Detailed Analysis:

1. Voluntariness of the appellant's statement:

The appellant contended that the statement recorded by the Customs Officer was not voluntary and was obtained under coercion. He argued that his mother was suffering from a mental disease, necessitating the sale of family gold and silver ornaments for her treatment. He claimed that the silver was melted into lumps for easier transport and concealed in a specially made jacket for safety. The appellant also alleged that the Customs Officer, known to his family, coerced him into making a false statement during interrogation and that he attempted to file a complaint and affidavit with the Executive Magistrate, which was refused.

The Tribunal found these claims unconvincing, noting that the appellant's story changed at different stages of the proceedings. Initially, he claimed to have purchased the silver from an unknown person, later stating that he was not required to disclose the source, and finally claiming the silver was family property melted down. The Tribunal concluded that the appellant had ample time to concoct his story and that the affidavit was not credible, as it was not sworn before a competent authority and appeared to be prepared much later. The Tribunal rejected the appellant's claim of coercion, finding no evidence to support it.

2. Validity of trade opinion and opportunity for cross-examination:

The appellant argued that the trade opinion provided by silversmiths was inconclusive and that he was denied the opportunity to cross-examine them, constituting a denial of natural justice. The Tribunal noted that the appellant did not request the opportunity to cross-examine the silversmiths at any prior stage of the proceedings. Therefore, this contention was deemed an afterthought and was not accepted.

While the silversmiths' opinion did not conclusively establish the foreign origin of the silver, they noted that villagers typically brought broken ornaments, not silver lumps like those found on the appellant. The Tribunal found that the circumstantial evidence, including the appellant's concealment of the silver and his inconsistent explanations, was sufficient to infer that the silver was illegally imported.

3. Burden of proof regarding the illicit import of silver:

The appellant argued that silver is not a notified commodity, placing the burden of proof on the Customs Department to establish that the silver was illegally imported. The Tribunal acknowledged that there was no direct evidence of the silver's illegal importation but noted that the Department relied on circumstantial evidence. This included the appellant's interception based on reliable intelligence, his residence in a border village, the concealment of the silver in a specially made jacket, and his inconsistent statements.

The Tribunal held that the Department had satisfactorily established several circumstances from which the inference of illegal importation could be drawn. The initial burden of proof was on the Department, but once circumstantial evidence was provided, the burden shifted to the appellant to prove his possession was innocent. The appellant failed to discharge this burden, and the Tribunal found that the totality of the facts raised a presumption under Section 114 of the Evidence Act that the silver was illegally imported.

4. Credibility of the appellant's explanations and defenses:

The Tribunal found the appellant's explanations and defenses to be incredible and inconsistent. At different stages, the appellant provided different stories, including purchasing the silver from an unknown person, not being required to disclose the source, and claiming the silver was melted family ornaments. The Tribunal noted that making false statements is itself a circumstance against the appellant.

The Tribunal concluded that the Deputy Collector and the Appellate Collector did not base their decisions on imagination or assumption but on several established circumstances. The inference that the silver was illegally imported was reasonable and warranted.

Conclusion:

After careful consideration of all the facts and circumstances, the Tribunal found no merit in the appeal and dismissed it. The appellant's contentions regarding the voluntariness of his statement, the validity of the trade opinion, the burden of proof, and the credibility of his explanations were all rejected. The Tribunal upheld the orders of the Deputy Collector and the Appellate Collector, confirming the confiscation of the silver and the penalties imposed.