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TMI Blog2010 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Section 123 of the Customs Act, 1962 in the background that the respondent has failed to produce any evidence regarding ownership of the goods?" 2. The background of the case is as follows : Acting on information, DRI Officers of Berhampur Murshidabad intercepted one truck being No. WB-57-4215 carrying 3030 kgs. of brass metal scrap valued at Rs. 3,03,000/- on 19-8-2004 at Nalhari Check Post after a long chase from Arodanga Village, Police Station-Raghunathgaunj along with three persons namely Joynal Abedin, carrier of the goods, one S.A. Mondal, the driver of the truck and one Adhirsta Bhaimali, cleaner of the vehicle. On interception of the said vehicles none of the above three persons could produce any document showing legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrier truck should not be confiscated under Section 111(b) and (d) and 115(2) of Customs Act, 1962 respectively and why penalty under Section 112 of the Customs Act, 1962 should not be imposed on them. On receipt of the notice they and all of them replied to the same denying and disputing the allegations and prayed for dropping the proceedings. The first authority adjudicated the case and passed an order dropping the proceeding. Being aggrieved by the said order of adjudication the department had filed an appeal and, on 28-6-2006 the appeal was heard. 5. After hearing the same the case was remanded back to the first authority for proper and reasoned order after taking into consideration of the documents adduced by the department and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional statement made by those persons who are recipient of notice and accepted the same to be admission. From their admission it was found that the goods were illegally imported from Bangladesh. Though the confessional statement was retracted later on, both the authorities have refused to accept such retraction on the point of law as laid down by the Supreme Court that subsequent retraction law should not be believed. He also supports the judgment and order of both the authorities contending that confessional statement cannot be equaled with the confessional statement done in a criminal trial. The confessional statements are made before DRI who is not police official. Therefore, the statement made before them cannot be said to be a conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical examination and also from other documents and receipts etc. If it is not proved rather if this burden is not discharged, then it shall be presumed that the goods are of Indian origin as those are available elsewhere. Therefore, Learned Tribunal has passed just, and right order. 10. In support of his contention on the principle of burden of proof the Learned Counsel for the respondent has relied on a decision of the Division Bench of this Court, in the case of [Commissioner of Customs (Prev.), W.B. Kolkata v. Raj Kumar Jaiswal] reported in 2006 (05) LCX0321 = 2006 (204) E.L.T. 561 (Cal.). In that judgment the Division Bench of this Court has noted amongst other that the statement made under Section 108 of the Act can be used ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter of the goods upon examining the confessional statement made by the respective persons and further the retraction said to have been made. This aspect of the matter was not dealt with at all. The Division Bench of this Court in the case of [Commissioner of Customs (Prev.), W.B. Kolkata v. Raj Kumar Jaiswal] (supra) observed that the statements made under Section 108 of the Act can be taken against the persons from whom the materials have been seized without any corroborative evidence. 13. Both the authorities have accepted this statement but the Learned Tribunal did not examine this aspect as it appear from the judgment and order. Therefore, we think that reversal of the judgment and order of both authorities without considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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