9911796707
TMI Blog1992 (3) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... urden on to the applicant, ignored the fact that such stones are indigenously available and, therefore, urged that a question of law would arise with reference to the findings of the Tribunal regarding the foreign origin of the goods in question, inapplicability of the provisions of Section 123 and Chapter IV-A of the Customs Act, 1962 and improper appreciation of evidence. The Ld. Counsel also placed reliance on the ruling of the North Regional Bench in the case of B.S. Jewellers v. Addl. Collector of Central Excise and Customs - reported in 1986 (26) E.L.T. 451 (Tribunal), the ruling of this Bench in the case of K. Babu Rao and Others v. Collector of Customs, Cochin [1986 (26) E.L.T. 766 (Tribunal)], another ruling of the West Regional Bench in the case of Indian Farmers Fertilisers Co-operative Ltd. v. Collector of Customs [reported in 1986 (26) E.L.T. 778 (Tribunal)], and Order No. 456/1990-Calcutta (E.R.B.) dated 18-9-1990. 2. We have carefully considered the submissions made before us. The Tribunal in the impugned order has given a finding that even in the reply to the show cause notice, the appellant had not taken the stand that he either purchased the goods in India or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign origin from the said Zubair for purposes of sale. The said Zubair also gave the appellant a chit containing his address, which was also seized by the authorities . Placing reliance on the statement of the appellant the authorities issued show cause notice to one Zubair of Ceylon from whom the appellant stated to have received semi-finished precious stones. The appellant took the plea that the statement recorded from him was not voluntary and stated that the said Zubair disowned the goods and stated that the same did not belong to him. In the proceedings drawn before the Tribunal a plea was taken that while the seizure was made on 27-6-1986, the statement could not have been recorded on 28-6-1986 inasmuch as the appellant was released by the authorities on bail only on 30-6-1986. In regard to this plea, the following has been set out in the order of the Tribunal: To a specific query as to what were the circumstances under which the appellant was released on 30-6-1986 though the seizure was effected on 27-6-1986 the learned DR could not give us any reply because he has not received the records. Unfortunately, during adjudication the appellant did not avail himself of an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traband nature warranting confiscation. In the facts and circumstances of the case the question whether the Tribunal has gone into the sufficiency of the evidence and the veracity of the appellant s statement will have to be examined in the context of the judgment of the Hon ble Supreme Court reported in 1983 (13) E.L.T. 1546 in the case of Collector of Customs v. D. Bhoormull wherein in the Hon ble Supreme Court has given guidelines. The relevant portion reads as under : That the Department would be deemed to have discharged its burden if it adduces so much evidences, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the fact sought to be proved . Admittedly in this case the appellant was released by the authorities on bail on 30-6-1986 while the statement is said to be recorded on 28-6-1986 as stated in the order of the Tribunal and what happened to the appellant during the period from 28-6-1986 to 30-6-1986, the Department was not able to throw any light. Even if the appellant had not cross-examined the officers, the fact remains that the appellant was in some kind of restraint. In this context, this Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find out if they were of foreign origin. Further, the Tribunal while taking note of the plea that these semi-finished precious stones were not banned for import has observed that these were permissible for import as un-cut and unpolished stones imported under REP licence and this shows that the goods were freely available in the country. In this background, therefore, in the light of the guidelines given by the Hon ble Supreme Court, it cannot be said that with reference to the evidence on record, there could be any presumption in favour of the Department and the burden could be said to have shifted on the appellant. I hold that question of law would arise in regard to the discharge of the burden cast on the Department in respect of the goods which are neither notified under Chapter IV-A nor under Section 123 of the Customs Act, 1962. I, therefore, allow the appellant s reference application on this score also. I, therefore, hold that the following questions of law are required to be referred to the Hon ble High Court: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. The learned advocate pleaded that the statement of the applicant recorded is not free from any doubts. In support of his argument, he referred to the following decision: 1986 (26) E.L.T. 766 (Tribunal) - K. Babu Rao and Others v. Collector of Customs, Cochin where the South Regional Bench had held that the confessional statement recorded during prolonged un-official detention, custody or control not acceptable as true and voluntary is hit by Section 24 of the Evidence Act, 1872. He pleaded that the goods viz. diamonds do not fall under Chapter IV-A and referred to Section 123 and the onus is on the revenue and the same onus has not been discharged. He also referred to another decision of the North Regional Bench in the case of B.S. Jewellers v. Additional Collector of Central Excise and Customs, Jaipur reported in 1986 (26) E.L.T. 451 (Tribunal), where the Tribunal had held that seizure and confiscation is invalid, if burden of proof that goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he materials on record substantiate a charge against the appellants that they attempted to export silver within the meaning of Section 113 of the Act entailing confiscation. The silver articles under seizure are not covered by notification relating to specified goods issued under Chapter IV-B of the Act and this position is conceded by the Department. Therefore, under law the onus is on the Department to prove the charges against the appellants. The main attack of the learned counsel for the appellants was that the inculpatory statements recorded from the appellants were not true and voluntary. The appellants were intercepted in the early hours on the morning of 5-11-1979 and were produced for remand only on 8-11-1979. If really the statements had been recorded from the appellants on 5-11-1979 itself, it does not stand to reason as to why they should have been remanded only on 8-11-1979. The appellants admittedly did not belong to the place where the seizure was effected and as such, in a situation where the authorities had reasons to believe that the silver articles under seizure were eventually meant for illegal export out of India, one would expect them to arrest the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on 5-11-1979, as a matter of logical corollary, it should have rejected in toto the entire confessional statement as tainted and brought about under circumstances of prolonged official detention or custody or control. Time out of number the Supreme Court and the High Courts have pronounced upon such a situation that such a statement would be hit by principles of Section 24 of the Evidence Act and have emphasised that notwithstanding the admissibility of confessional statements, Courts should consider their acceptability as true and voluntary. The learned SDR characterised the observation of the Board extracted above as unwarranted and uncalled for . Such characterisation, in our opinion, would not in any way answer the issue arising for determination. The fact that the appellants did not complain to the Judicial Magistrate at the time of remand would not ipso facto make the confessional statements true and voluntary. In a similar situation, this Bench in appeal No. C(T) 197/82 and C(T) 107/82, in the case of K.I. Pavunni v. Collector of Customs and Central Excise, Cochin, 1985 (22) E.L.T. 913 (Tribunal) to which we are both parties has taken the view that such statements recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused by any inducement, threat or promise, such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. Therefore, according to the Supreme Court any confession should satisfy a double test viz. (1) it should be perfectly voluntary and (2) it should be true and trustworthy. If the voluntary nature is suspect, the second test would not arise at all for consideration." 7. In the absence of any explanation on the side of the Department as to the kind of investigation which necessitated the appellants herein to remain in Cochin from 5-11-1979 to 8-11-1979 we are constrained to hold, in appreciation of the factual background of this case, that the appellants should have been kept in a state of unofficial detention or custody or control from 5-11-1979 to 8-11-1979 and the statements confessional nature coming into existence during such a period would be squarely hit by the principles of Section 24 of the Evidence Act. We, therefore, hold that no reliance could be placed on the so-called confessional statements of the appellants which, in our opinion, could not have been voluntary. We are fortified in this conclusion by yet another circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 8 A.M. when a second mahazar was drawn up, which in our opinion is sheer exercise of superfluity by authorities, the appellants are alleged to have made a statement confessing to an act of transporting silver to Trivandrum for taking them out of India to Dubai. The statements alleged to have been made by the appellants on the spur of the moment immediately on seizure are admittedly exculpatory and we are at a loss to understand as to why the appellants should make a volte face within hours and confess to the authorities of transporting silver articles for illegal export out of India. Indeed, the Additional Collector has himself observed in the original order that I agree with the counsel that for all practical purposes this document (first mahazar) should serve as the basic document of this case i.e. seizure mahazar. Referring to the exculpatory version of the first mahazar and inculpatory version in the second mahazar, mutually repugnant to each other, the Additional Collector has observed: During cross-examination, the Chief detecting officer of this case did recognise the divergence in the depositions of the occupants of the car as conveyed in the first document and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursing salary to servants of Sita Devi and (ii) in a bill" issued by the Bombay Garage Ltd. the appellant was described as Private Secretary to Princess Sita Devi . But these circumstances could not establish that what was given to her by Sita Devi was remuneration for services rendered or to be rendered. Realizing this infirmity, the Tribunal observed that the burden of proving that the receipts were not income lay upon the appellant The Tribunal did not infer that as remuneration for disbursing salary to Sita Devi s servants she was given large amounts of money and jewellery. Description of the appellants in the cash-memo issued by the Bombay Garage Ltd. as Private Secretary to Princess Sita Devi could have no evidentiary value. It is not claimed that there was evidence on the record that this was the general repute of the appellant. Description of the appellant as Private Secretary of Sita Devi in a stray cash memo issued by a third party about the source of whose knowledge there is not an iota of evidence, could not evidence a relationship of master and servant : much less could it prove that what was given by Sita Devi to the appellant was remuneration for service ren ..... X X X X Extracts X X X X X X X X Extracts X X X X
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