9911796707
TMI Blog1988 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... were recovered and seized. The personal search of all the occupants of the taxi was also taken. A receipt bearing No. 4743 and another slip of paper having no number but written in pencil in the name of Jhaverchand Motichand were recovered from the shirt s pocket of the appellant Shri Armarkat. These two slips of papers as well as the gold were seized. The statements of the appellant were recorded on 7-4-1970 and 29-4-1970. The others statements were also recorded on 7-4-1970. After the completion of the investigations a show cause notice was issued to the appellant as to why the 99 gold slabs seized in the case should not be confiscated and why penalty should not be imposed under Section. 112(b) of the Customs Act. There was also an allegation of contravention of Section. 8(1) of the Gold (Control) Act. 2. The Collector of Central Excise, Nagpur, who held the inquiry after consideration of the reply to the show cause notice and after affording personal hearing ordered confiscation of the seized gold and imposed a penalty of Rs. 5 lakhs on the appellant. 3. Feeling aggrieved by the order of penalty, the appellant preferred an appeal before the Central Board of Excise Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Bombay reported in 1986 (26) E.L.T. 689 (Bom.) in the case of Maniklal Pokhraj Jain v. Collector of Customs (P) Bombay Others. It was also contended by Shri Prabhu that besides the confessional statements of the appellant there were independent evidences of independent witnesses which had been referred to by the adjudicating authority. Therefore, that evidence itself would be sufficient to impose penalty on the appellant. It was also the submission of Shri Prabhu that maximum leniency had been shown by the Board in the matter of penalty and no further interference is called for. 9. I have carefully considered the submissions made on both the sides and perused the available records. The first point that arises for consideration is whether the revision application which is transferred to the Tribunal was barred by time. Undisputedly, the Board s order is dated 27-3-1981. Though in the revision application the present appellant did not state the date on which the Board s order was communicated it was specifically mentioned that the revision application should have been filed latest by early April, 1982. But then, the revision application was actually received by the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissibility or otherwise will be governed by the provisions of Section 25 of the Evidence Act even in so far as confessional statements under Section 107 of the Customs Act are concerned. The High Court after referring to the judgments of the Supreme Court reported in 1983 E.L.T. 1408 (S.C.) = AIR 1965 S.C. 481 - Soni Vallabhai and Others v. Asstt. Collector of Customs, Kamnagar and AIR 1978 S.C. 1770 - State of Uttar Pradesh v. Butasingh proceeded to examine the two aspects which the High Court had set out in paragraph 20 of its order. The High Court found that there was discrepancy between the oral evidence and the confessional statements as to the location of the contraband gold. Thereafter, the High Court referred to the only independent witness examined on behalf of the prosecution. In para 32 of its order the High Court observed - This testimony coming from an independent person completely believes the version that the statement of accused Bhayyaji at Ex.18 was made voluntary by him. In fact the entire purport of this testimony goes to show that not only the accused Bhayyaji was assaulted and abused and was threatened but other accused such as Ramdas and others were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s paucity of prosecution evidence for independent corroboration and further there is material on record to infer exercise of coercive methods in recording the statement and inasmuch as both the statements Exts. 18 29 are retracted by the accused at the trial, I am of the view that these statements cannot be accepted with any evidentiary value. There is no other evidence on behalf of the prosecution to sustain the conviction of the accused. 16. From the reading of the judgments of the High Court as above it is clear that the High Court s finding as to the confessional statements being not voluntary was based on the evidence of the one panch witness. The High Court in more than one place had commented that the prosecution did not examine the other panch witness of Ex.18 and both the panch witnesses of Ex. 29. 17. Now it is well settled that the code of criminal procedure as well as the Evidence Act in terms are not applicable to the proceedings before the adjudicating authority. The Courts are however bound by the provisions of the two enactments. The perusal of the order of the Collector shows that the Collector did not solely rely on the confessional statements of the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the footing that diamonds were found in the coat brought by Captain Khan on 2nd November, 1969 and that it was not permissible for the Central Government to proceed on the assumption that the finding was incorrect.........according to the learned Counsel, it was wholly improper on the part of the Central Government as quasi-judicial Tribunal not to take into consideration of the finding recorded by the High Court." Thereafter, the Lordship referred to the observation of the Justice Chandurkar which reads - Section 112 is an express provision which authorises the levy of penalty in respect of acts or omissions referred to therein. The procedure with regard to adjudication of confiscation and penalties is expressly provided for in Section 122 of the Act. The power to be exercised by the Collector of Customs or Deputy Collector of Customs or by an Assistant Collector of Customs or by Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs in accordance with the value of the goods liable to confiscation. The procedure to deal with confiscation or imposition of penalty is prescribed in Section 124 and under that provision a notice in writing has to be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with independently of each other on such material as is available and permissible in these proceedings." 19. The Collector who held the adjudication in detail considered the other evidence on record. The presence of the present appellant in the car at the relevant time was not denied. The two independent witnesses, on whose statement the Collector relied, have stated that the bag containing 99 gold slabs were initially found on the lap of the present appellant. There were other circumstantial evidence to connect the appellant with the seized gold. The Board, no doubt, in its order did not discuss the other evidence. This may be because of the nature of the contentions urged before the Board. On behalf of the appellant it was submitted before the Board that even if the appellant s statements were accepted as correct, the appellant was a mere carrier and did not deserve such heavy punishment. Since the Board was accepting the finding of the Collector, legally also the Board was not required to discuss the evidence in detail. 20. On consideration of all the aspects, even on merit the appellant has no case. In the result this appeal fails and the same is rejected. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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