9911796707
TMI Blog1997 (12) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... by them covered by the Bill of Entry No. 8775, dated 23-8-1990 and for this purpose had concealed 5,079 kgs. of cadmium sticks beneath the layer of aluminium scrap and mixed the broken zinc castings with the aluminium scrap to avoid detection of the misdeclaration. The matter was adjudicated by the Collector of Customs, Bombay, who under his order-in-original dated 27-8-1991 referred to the statements of Shri Ashok Kumar Talesara wherein he had admitted that the foreign suppliers had supplied different goods to compensate him for some earlier losses and that he had prior knowledge of such supply of different goods. He imposed a redemption fine of Rs. 5 lakh and a penalty of Rs. 5 lakh, after confirming other allegations as contained in the show cause notice. 3. The matter was posted for hearing on 17-9-1997, when Shri A.S. Sunder Rajan, Advocate, appeared for the appellants. Shri A.K. Agarwal, SDR, represented the respondents/Revenue. 4. Shri A.S. Sunder Rajan, Advocate, submitted that the appellants were not advancing any arguments on the merit of the case and that they were only pleading for waiver of penalty. Shri Ashok Kumar Talesara was the sole proprietor of M/s. Abha Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs in the garb of aluminium scrap. He admitted that the supplier had told him about the despatch of cadmium sticks and zinc die castings. Shri Ashok Kumar Talesara confirmed the above admission in his further statement dated 9-10-1990 also recorded under Section 108 of the Act and clarified that the letter dated 9-10-1990 containing contradictory pleadings was written on legal advice with a view to self-protection. In reply dated 21-4-1991 to the show cause notice dated 18-3-1991 the factum of the goods being other than what had been declared was admitted. In fact, no arguments were advanced by the Counsel for the appellants on the merits of the case. 7. As against the declared aluminium scrap, the goods imported were found to be largely broken zinc die castings and cadmium sticks. The cadmium sticks were found hidden beneath the layer of aluminium scrap. The broken zinc die castings were mixed up with the aluminium scrap in such a way as to evade detection. As against the declared weight of 18,065 kgs. of aluminium scrap, the weight of the consignment was found to be 20,829 kgs. 8. The bill of entry for clearance of the goods was filed on 23-8-1990. The goods were examined on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingots and that the supplier had already informed him of the contents before despatch of the material and that this material was despatched by the supplier with his consent. In reply to question No. 5, he had stated as under : What I have stated in my statement, what is recorded hereinabove and what is stated in the statement dated 20-9-1990 is all true and it is also true that what was found on examination by the Customs was imported with my knowledge. The letter written by me today was written on legal advise with a view to save and defend me. What is stated in paragraph 6 is baseless and not true and I have made the said statements on the advise of my legal consultant. 9. The Counsel for the appellants had contended that the appellants had retracted from his earlier statement at the first available opportunity. In his retraction dated 27-9-1990, Shri Ashok Kumar Talesara had submitted that he did not know and had no reason to believe that the consignment contained any goods other than aluminium scrap declared by him in the bill of entry. The first statement was recorded on 20-9-1990. The retraction dated 27-9-1990 is belated. The original statement dated 20-9-1990 contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner. In the case of Jain Enterprises and Raichand v. Collector of Customs, Madras, 1986 (25) E.L.T. 811 (Tribunal), the Tribunal in para 7 of their decision had recorded as under : 7. We have carefully considered the submissions made before us. It is not disputed that the goods under seizure at the relevant time were not items notified under Section 123 of the Act. However, it is a settled proposition of law that notwithstanding the inapplicability of Section 123 of the Act and the presumption arising thereunder, the Department can always seek support from the presumptions arising under Section 114 and 106 of the Evidence Act and the principles embodied therein as held by Supreme Court in 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chand at the time when he was produced before the Judicial Magistrate for remand. We therefore, do not find any substance in the retraction which, in our opinion, has been desperately resorted to by appellant Raichand in a bid to extricate himself from the clutches of law and to salvage the goods to his brother. 10. The way the goods were concealed when seen in the light of the factual details as given in the statements, as summarised/partly extracted above, leave no doubt that the cadmium sticks and the zinc die castings were sumuggled in the garb of aluminium scrap. The declared quantity was 18,065 kgs. of aluminium scrap which on examination was found to be weighing 20,829 kgs. in which the aluminium scrap was only 3,887 kgs., rest being cadmium sticks weighing 5,079 kgs. and broken zinc die castings weighing 11,863 kgs. The declared value was Rs. 2,24,823/- while the assessed value was determined at Rs. 8,90,486/-. Such a design and organisation clearly establish that the appellants were in the knowledge of the contents of the drums/containers. In para 22 of the order, the adjudicating authority had held, as under : 22. It is not in dispute that against Aluminium Scrap, C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
