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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 ..... the goods are admittedly dutiable goods - The Learned Tribunal did not consider the impact of the confessional statement nor examined whether the confessional statement in view of retraction can be accepted or not - The Learned Tribunal should have decided the matter on the question of burden of proof and smuggling character of the goods upon examining the confessional statement made by the respective persons and further the retraction said to have been made. Both the authorities have accepted the statement but the Learned Tribunal did not examine this aspect as it appear from the judgment and order - Accordingly, the judgment and order of the Learned Tribunal is set aside - Direct the Learned Tribunal to decide the matter afresh takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle. On interception of the said vehicles none of the above three persons could produce any document showing legal acquisition of the goods which were seized on reasonable belief of their illicit importation. The driver of the truck, Shri Soheb Ali Mondal in his statement stated that under the instruction of the owner of the truck he loaded the brass metal scrap which were of foreign ship scrap. The owner of the brass metal scrap were Aaji Pradhan, Montu Biswas, Ataur Rahaman and Latib Sheikh were all present at the time of loading of this truck. He further stated that when he was signaled to stop the truck he was frightened and fled and he stopped only after a long chase. He could not produce any documents relating to acquisition of br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proper and reasoned order after taking into consideration of the documents adduced by the department and follow principles of natural justice. Thereafter the matter was reheard by the first authority and thence the first authority passed an order confiscating the seized goods of 3030 kgs. of metal scrap under Section 111(b) and (d) of Customs Act, 1962 and the seized truck No. WB-57-4215 under Section 115(2) of Customs Act, 1962 giving an option to redeem on payment of Redemption Fine of Rs. 20,000/-. Penalty was imposed on Shri Azizur Rahman under Section 112 of Customs Act, 1962 and separate personal penalty under Section 112 of Customs Act, 1962 was imposed on Shri Seajul Haque for Rs. 5,000/-, Shri Mantoo Biswas, Ataul Haque and Abdul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is not police official. Therefore, the statement made before them cannot be said to be a confession before the appellate authority. Obviously, the burden lies upon the respondent to prove that the goods are of Indian origin and source of collection originates in India. It is worth to be mentioned that the accused persons could not produce any document. However, Learned Tribunal did not take notice of the factum of the aforesaid confessional statement made erroneously and shifted the burden on the department. In support of his submission he has referred to the decision relied on by the first adjudicating authority as well as the appellate authority. In addition thereto he has referred to a decision of the Supreme Court in the case of [chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted amongst other that the statement made under Section 108 of the Act can be used against the persons from whom materials have been seized without any corroborative evidence, provided, such statement recorded after service of summons as required under the Act and that those are voluntary. 11. We have taken note of those submissions and we have gone through the impugned judgment and order of the Learned Tribunal. The point which has fallen for consideration is who is to discharge the burden on the facts and circumstances of the case. It appears from the record that first authority as well as the appellate authority has proceeded on the basis of confessional statement made by the driver and other co-accused. The confessional statement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgment and order of both authorities without consideration of the aforesaid points was not warranted hence it is not sustainable. 14. Accordingly, the judgment and order of the Learned Tribunal is set aside. We direct the Learned Tribunal to decide the matter afresh taking into consideration of the statements made by various persons and as accepted by two authorities and also to consider whether the retraction made by these persons by swearing affidavit can be believed and/or accepted or not, since such plea of retraction was not accepted by both the authorities below. 15. This matter may be heard out and imposed of finally within a period of a month form the date of communication of this order. 16. There will be no order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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