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TMI Blog2009 (8) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was mala fide or ill motivated or deponent was gained over by unjust enrichment or motive-such retraction shifts burden of proof and what was stated before retraction needs to be supported/corroborated by cogent evidence. that the appellant was neither been issued a show cause notice nor been charged with any offence. Held that- as the show cause notice not issued on this ground the appellant succeed. - C/625-627/2005-Cus.(BR) - C/337-339/2009(PB), - Dated:- 3-8-2009 - S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T) Shri Piyush Kumar and Ms. Reena Rawat, Advocates, for the Appellant. Shri Vijay Kumar, SDR, for the Respondent. [Order per: D.N. Panda, Member (J)]. - There being a common cause giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese appellants and M/s. Global Fibre were comparable have not been brought on record for comparison. There is nothing on record to show the date of import of goods by M/s. Global Fibre was the same as that of the import made by the appellant and the goods imported by same as well as from same supplier abroad. 3. Learned Counsel submits that the goods imported by the appellant were not identical or similar in terms of quality, quantity and specification of both. Further, whether the test report of M/s. Global Fibre showing the composition of goods has any basis to compare with the composition of goods to the appellants were not on record. Therefore, the goods of both cannot be claimed by Revenue to be comparable. 4. Learned Counsel's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods i.e. M/s. A.N. Sales Corporation. But the panchnama appearing at pages 92-98 in the appeal folder of M/s. Satyam Exim does not indicate the date of manufacture of the impugned goods. That gives a doubt whether the packing slips related to the impugned consignments. 6. Learned DR has seriously objected to the retracted statements while statements were given voluntarily by the deponent. He relies on the judgment in the case of Surjeet Singh Chhabra v. Union of India reported in 1997 (89)E.L.T. 646 (S.C.). His argument is that the customs authorities not being police officers, any statement recorded under Section 108 of Customs Act, 1962 is reliable evidence. Relying on pages 104-105 of the appeal folder in the case of Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m each other by their nature, character and specification and all other features which can be perceived by senses present equally in both types of goods. If such facts are not on record, it can be said that there was no evidence to claim the goods were comparable. Revenue had no test report in respect of both the goods claimed to be comparable. In absence of any technical test report, two goods cannot be said to be comparable. The invoice that was relied by Revenue does not show the specification of the goods of these two appellants whether similar to the goods imported by M/s. Global Fibre. Added to this, the manufacturers invoices appearing at page 105 in the file of Satyam Exim, only indicates that the said document related to M/s. Globa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid reasons adduced by Revenue, Revenue would succeed. But nothing cogent evidence is on record. 11. So far as the retraction of evidence is concerned, it may be stated that the oral evidence is short lived. That provided support to Revenue. But that was retracted before a Magisterial Court subsequently. Once that is retracted, the burden of proof is on Revenue to show that what was stated before retraction was still supported and corroborated by cogent evidence and retraction was mala fide and with ulterior motive. Collateral evidence does not exist to prove stand of Revenue. There is no dispute that the oral evidence recorded under Section 108 has evidentiary value. But law does not sanction such evidence once impeached before a Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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