1986 (7) TMI 243 - AT - Customs

Issues Involved:
1. Admissibility of statements recorded under Section 108 of the Customs Act.
2. Applicability of Section 123 of the Customs Act and the burden of proof.
3. Conscious and exclusive possession of the contraband.
4. Entitlement to the benefit of doubt.
5. Ignoring statements recorded under Section 108 of the Customs Act.
6. Legal evidence connecting the petitioner with the contraband.

Detailed Analysis:

1. Admissibility of Statements Recorded under Section 108 of the Customs Act:
The applicant argued that the statements recorded under Section 108 of the Customs Act were inadmissible because an FIR had been registered, making the investigation by Customs authorities invalid under Section 25 of the Evidence Act and Article 20(3) of the Constitution of India. The Tribunal referenced the Supreme Court judgment in *Ramesh Chandra Mehta v. The State of West Bengal*, which clarified that a person against whom an inquiry is made by a Customs Officer is not considered an accused under the law. Therefore, statements made under Sections 107 and 108 of the Customs Act are admissible. The Tribunal concluded that this point did not merit reference to the High Court as it had already been settled by the Supreme Court.

2. Applicability of Section 123 of the Customs Act and the Burden of Proof:
The applicant contended that since the seizure was made by the police and not under the provisions of the Customs Act, the presumption under Section 123 of the Customs Act could not be applied. The Tribunal noted that this point was raised for the first time in the reference applications and was irrelevant to the case's facts. The seized gold included a gold biscuit of foreign origin, and the applicant had not contested the smuggled nature of the goods at any stage. Therefore, the presumptions under Section 123 of the Customs Act and Section 99 of the Gold (Control) Act were applicable. The Tribunal found no question of law to refer to the High Court on this point.

3. Conscious and Exclusive Possession of the Contraband:
The applicant questioned whether the Department had proven conscious and exclusive possession of the gold. The Tribunal upheld the Collector's finding that the gold was recovered from the applicant's almirah in his drawing room, demonstrating conscious and exclusive possession. The Tribunal found that this issue involved a question of fact, not law, and thus did not warrant a reference to the High Court.

4. Entitlement to the Benefit of Doubt:
The applicant argued that he should be given the benefit of doubt, similar to the other co-noticees. The Tribunal noted that the Collector had provided detailed reasons for giving the benefit of doubt to the co-noticees while imposing a penalty on the applicant. The Tribunal upheld the Collector's decision after a thorough examination of the facts and evidence. This issue was also deemed a question of fact, not law.

5. Ignoring Statements Recorded under Section 108 of the Customs Act:
The applicant claimed that the Collector ignored statements recorded under Section 108 of the Customs Act and made a new case not mentioned in the show cause notice. The Tribunal found this claim vague and unsupported by specifics. It concluded that there was no basis for referring this issue to the High Court.

6. Legal Evidence Connecting the Petitioner with the Contraband:
The applicant questioned whether there was legal evidence connecting him with the contraband. The Tribunal upheld the Collector's findings based on the evidence that the contraband was recovered from the applicant's almirah. This issue was also determined to be a question of fact.

Conclusion:
The Tribunal concluded that none of the points raised involved questions of law requiring reference to the High Court under Section 130(1) of the Customs Act, 1962, and Section 82-B(1) of the Gold (Control) Act, 1968. Consequently, both reference applications were dismissed.

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