9911796707
TMI Blog2010 (2) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeared that it was going to Nepal. A statement of the driver Shri Abdul Khaliq was recorded on the spot under Section 107 of the Customs Act, 1962 and he told that the sugar was loaded from the firm of M/s. Rajesh Kumar Deepak Kumar, Baharaich owned by M/s. Akash Traders, Burdpur, Distt. Siddarth Nagar whose proprietor is Sh. Sheo Shankar Jaiswal and same is being taken to Nepal through Village Ganwaria. The sugar alongwith the truck was placed under seizure. Subsequently, statement of Sh. Sheo Shankar Jaiswal, proprietor of Akash Traders and owner of the sugar was recorded on 16-6-07 under Section 108 of Customs Act, 1962 and while admitting the ownership of the sugar, he stated that the same was being transported to his own firm situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act. On appeal to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 20-11-08 set aside the Additional Commissioner s order. It is against this order that these appeals have been filed by the Revenue. 2. Heard both the sides. 2.1 Shri S.N. Srivastava, the learned DR, pleaded that truck was loaded with sugar had been intercepted at a place very close to Indo Nepal Border; that no documents regarding transportation of the sugar had been produced; that statement of the truck driver on the spot clearly indicated that the sugar was going to be transported to Nepal; that the statement given by the driver has not been retracted; that though a complaint of demanding money and beating has been lodged against the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 107 of the Customs Act, 1962 can be recorded only by an officer of Customs empowered on this behalf by the Commissioner of Customs by a general or special order; that Hon ble Gujarat High Court in the case of UOI v. Abdulkadar Abdulgani Hasmani reported in 1991 (55) E.L.T. 497 has held that the statement under Section 107 of the Customs Act, 1962 must be recorded by a duly empowered officer; otherwise it would be of no evidentiary value; that merely on the basis of statement of truck driver, which has been recorded in the presence of police officers allegation cannot be made that the sugar loaded in the truck was going to be smuggled into Nepal; that in this regard, she relied upon the Tribunal s judgment in the cases of Chinna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), statement recorded under Section 107 of the Customs Act, 1962 would be admissible as evidence only if the same has been recorded by an officer duly empowered in this behalf by a general or special order of the customs while in this case, there is no such evidence showing that this statement of the driver had been recorded by an officer duly authorized by the Commissioner. The presence of injuries found on the driver during his medical examination on 9-6-07 also indicates that the statement of the driver had been recorded under duress. Moreover other than the statement of the driver, there is no corroborative evidence indicating that the sugar loaded in the truck was going to the smuggled into Nepal. In view of these circumstances, I hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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