1992 (3) TMI 229 - AT - Customs

Issues Involved:
1. Determination of the foreign origin of semi-finished precious stones.
2. Applicability of Section 123 and Chapter IV-A of the Customs Act, 1962.
3. Burden of proof and appreciation of evidence.
4. Voluntariness and admissibility of the appellant's statement.
5. Sufficiency of evidence for confiscation of goods.
6. Legal questions for reference to the High Court.

Detailed Analysis:

1. Determination of the Foreign Origin of Semi-Finished Precious Stones:
The Tribunal found that the semi-finished precious stones were of foreign origin based on the appellant's admission that the goods were entrusted to him by a Ceylon national named Zubair and smuggled into India from Ceylon. This conclusion was reached by appreciating the evidence on record, including the appellant's inculpatory statement and other circumstances.

2. Applicability of Section 123 and Chapter IV-A of the Customs Act, 1962:
The Tribunal noted that the presumption under Section 123 was not invoked against the appellant in the impugned order. The Department was found to have discharged the burden of proving the foreign origin and contraband nature of the goods based on the appellant's admission and other evidence.

3. Burden of Proof and Appreciation of Evidence:
The appellant contended that the burden of proof was improperly shifted onto him and argued that the semi-finished precious stones were indigenously available. The Tribunal, however, concluded that the Department had sufficiently discharged its burden of proof through the appellant's own admissions and other circumstantial evidence.

4. Voluntariness and Admissibility of the Appellant's Statement:
The dissenting opinion by Member (Technical) highlighted concerns about the voluntariness of the appellant's statement, recorded while he was allegedly under illegal detention and torture. The appellant's statement was argued to be inadmissible under Section 24 of the Evidence Act due to its involuntary nature. The dissenting opinion emphasized that the statement should satisfy the double test of being perfectly voluntary and true, as per the Supreme Court's guidelines.

5. Sufficiency of Evidence for Confiscation of Goods:
The dissenting opinion also questioned the sufficiency of evidence for confiscation, arguing that the Department had not provided expert evidence to establish the foreign origin of the goods. The dissenting Member (Technical) cited previous case laws to support the argument that the appellant's statement, being hearsay and retracted, could not be solely relied upon for confiscation.

6. Legal Questions for Reference to the High Court:
The majority view held that mixed questions of law and fact arose in this case, warranting a reference to the High Court. The questions formulated for reference were:
1. Whether in the facts and circumstances of the case reliance can be placed on the statement of the appellant?
2. Whether in the facts and circumstances of the case, the evidence cited against the appellant could be taken to be sufficient to raise a presumption in favor of the Department for the purpose of confiscation of the goods?

Conclusion:
The final order, in light of the majority view, allowed the reference application and directed that the formulated questions of law be referred to the High Court under Section 130 of the Customs Act, 1962. The dissenting opinion raised significant concerns about the voluntariness of the appellant's statement and the sufficiency of evidence, which were considered crucial for the legal questions to be addressed by the High Court.

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