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TMI Blog2004 (6) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... cuit from Varda Ram. A secret-cavity was also found to have been made in the center of back side of the front seat of jeep. As they did not produce any document or bill for the possession of gold biscuits, the same were seized along with jeep and shoe and socks and cellpone tape. On enquiry they stated that these biscuits belonged to Mala Ram of Arihant Bullion, Ahmedabad who had given these Biscuits to them for delivery to one Asandas Sindhi of M/s. Krishna Jewellers, Ajmer. On search of residential and business premises of Shri Asandas at Ajmer, nothing incriminating was found. On search of business premises of Arihant Bullion on 24-7-1998, Shri Gopibhai told that 30 foreign mark gold biscuits, purchased from M/s. Choksi Ranchhodlal Kishordas, Ahmedabad under Bill Nos. 8491, dated 21-7-1998 and 8505, dated 22-7-1998 and from M/s. H. Kumar Gems International under Bill No. 2158, dated 23-7-1998, were sold to Jai Krishna Jewellers of Ajmer vide Bill No. 58, dated 23-7-1998 and he had sent the same through his driver Vaja Ram and Varda Ram. Subsequently the Commissioner, under Order-in-Original No. 41/2000, dated 14-7-2000 confiscated the gold, jeep, etc. and imposed penalties. On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they had not deposed that gold was of smuggled nature. 3.2 The learned Advocate, further submitted that after interception of the jeep by Customs Officers at Sirohi at 4.30 AM on 24-7-1998, the Customs Officers at Ahmedabad had searched the business premises of Arihant Bullion at 10.30 AM and seized credit bill book, cash bill book, delivery challan book, stock register and 3 purchase bills; that the stock register showed the stock position, purchase of gold bars from dealers, acquisition of 35 gold bars from one Mohd. Hanif Sheikh under Purchase Voucher No. 951, sale of 30 gold bars vide Bill No. 58 to Asandas and return of 35 gold bars to Mohd. Hanif; that 11 Swiss mark gold bars duly accounted for in the books were not seized; that thus it can also not be alleged by the Department that the books of accounts were made subsequently nor is there any evidence to prove fabrication of any records; that thus the entire findings in the impugned Order are based on assumptions and are incorrect and are contrary to the material on record. He also mentioned that no reliance can be placed on the statements of Varda Ram and Vaja Ram which were prepared by the Custom Officers with a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (58) E.L.T. 283 (T). The Tribunal has held that there must be some prima facie material which is relevant and germane to come to the conclusion that there was a reasonable belief. Burden under Section 123 of the Customs Act shifts to the person only when the goods are seized under the reasonable belief that the goods are smuggled one. (iii) R.P. Industries v. C.C., Ahmedabad - 1996 (82) E.L.T. 129 (T) wherein it has been held by the Tribunal that statements recorded under Section 108 of the Customs Act would under ordinary circumstances deserve credibility for the purpose of drawing a conclusion. However, if they are inconsistent with the documentary evidence, leading to raise a doubt as to their admissibility and in any case, with the factual position, such documentary evidence has to be preferred. (iv) Kulbhushan Jain v. C.C., Delhi - 1999 (111) E.L.T. 906 (T) wherein it has been held that an affidavit cannot be rejected by the authorities without making an enquiry. (v) Jitendra Kumar Ghishulal Jain v. C.C. (Prev.), Mumbai, 1998 (103) E.L.T. 591 (T) wherein it has been held that retracted confession is a weak evidence to be solely relied upon to impose persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them under Section 123 of the Customs Act. He also mentioned that no material has been adduced on record to show that the statements were given by Vaja Ram and Varda Ram under coercion; that simply by writing or mentioning at the time of bail application that these statements were recorded under coercion and torture does not prove the point; that in K.P. Abdul Majeed v. C.C.E., Cochin, [2000 (123) E.L.T. 960 (T) = 1998 (74) ECR 93 (T)] it has been held by the Tribunal that retraction of statement is of no avail as the appellant has failed to show that his statement was obtained by threat or coercion. He finally submitted that the decisions relied upon by the learned Advocate are not applicable to the facts of the present matter; that for example decisions in the case of R.P. Industries and Moosa Others were relied upon in support of conclusion that documentary evidence should be preferred over oral evidence; that the documentary evidence produced in the present matters has not been found to be genuine and thus does not advance the case of the Appellants. 5. We have considered the submissions of both the sides. The undisputed fact in these appeals is that 30 foreign mark gold bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aft and hence 35 gold biscuits of different marks were returned to Mohd. Hanif as 30 Swiss marked foreign mark gold biscuits had been sent to Ajmer. The Appellants had also produced the Affidavit of said Mohd. Hanif. The Commissioner has dealt with the all these submissions in the impugned Order and has discarded all these submissions on the following grounds: (i) Raimal Bhai has denied having introduced said Mohd. Hanif Sheikh to Gopi Bhai, (ii) An unknown person would not leave his 35 gold biscuits worth over Rs. 17.50 lakhs with the assurance that he would get Demand Draft in the evening. (iii) Mohd. Hanif was holding the gold biscuits since August, 1997 and he had come to Ahmedabad to sell the same due to family reasons and on account of need for money. But he could not wait for one night when DD was not given to him. (iv) His Affidavit does not mention date of transaction. (v) No person would accept gold biscuits of different markings. (vi) Entry in Stock Register reg. deal with Mohd. Hanif is in different handwriting and with different ink. 7. We have perused the Affidavit of Mohd. Hanif Sheikh. He does not mention in the affidavit the date on ..... 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