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TMI Blog2013 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the Tribunal was right in rejecting those statements as inadmissible in evidence. Therefore, even though such statement made under Section 108 of the Customs Act is admissible in evidence, the authorities are not necessarily bound to accept the same as such in the absence of further materials to substantiate the contents of such statement - Decided in favor of assessee - C.M.A. No.2451 of 2005 and C.M.P.No. 13063 of 2005 - - - Dated:- 28-2-2013 - R. Banumathi And K. Ravichandra Baabu,JJ. For Appellant : Mr.Ravi Anantha Padmanabhan SCGSC For Respondent : Mr.B.Satish Sundar JUDGMENT This appeal is preferred by the Revenue against the order of the CESTAT, whereby the Tribunal set aside the order of confiscation of an imported car and penalty. The following are the substantial questions of law raised in this appeal : 1. When the statement of Abdul Razak given in response to the summons issued is admissible in evidence, has not the Tribunal committed an error of law in ignoring that statement, while deciding the issue in question ? 2. Whether the failure to take the statement of the first respondent made before the Income Tax Authorities, which is othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.5.2000 requiring his presence before the DRI, Calicut. However, he appeared on 8.6.2000 and gave a statement under Section 108 of the Customs Act stating that the earlier statement given on 22.2.2000 was correct and the retracted statement given on 23.2.2000 was not correct. He also stated that the receipt in No. 1000 dated 12.11.1995 issued in the name of the first respondent was not a true invoice. The first respondent was also issued summons dated 22.5.2000 and again on 29.5.2000 requiring his presence at the DRI Office, Calicut. 4. The Joint Commissioner of Customs, Chennai ordered provisional release of the said vehicle on furnishing a bond with 100% bank guarantee for the assessable value of Rs.4,92,855/- pending issuance of show cause notice and adjudication. Accordingly, the bank guarantee was furnished and the vehicle was also provisionally released on 17.7.2000. In between, a show cause notice was issued on 5.7.2000 by the DRI, Calicut, calling upon the first respondent herein as well as the said Abdul Razak to show cause as to why the said Car should not be confiscated under the provisions of Section 111(d) and 111 (m) of the Customs Act, 1992 read with Section 3(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India (1997 (89) ELT 646 (SC)) and a decision of this Court in Roshan Beevi and Others Vs. Joint Secretary, Government of Tamil Nadu 1984 (15) ELT 289 (Mad) in support of his submissions. 7. Per contra the learned counsel appearing for the first respondent /importer submitted that the findings rendered by the Tribunal based on the materials available on record are not canvassed by the Revenue as perverse and therefore there is no substantial question of law arises before this court for consideration in this appeal. Apart from the said preliminary objection, he further submitted that all the documents filed along with the Bill of entry show that the first respondent is the purchaser of the said vehicle and he had imported the same with valid and genuine documents which are not proved as not genuine by the Revenue by placing any other materials except the statement made by the said Abdul Razak and the receipt issued in No.002 dated 18.11.1997 showing him as the purchaser of the said vehicle. He further contended that any statement made before the Income Tax Authorities cannot be relied on by the Customs Authorities for the purpose of implicating the first respondent. In supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Abdul Razak on 23.2.2000 is enough to conclude that the evidence in this case is heavily weighing in favour of the importer. The Tribunal further pointed out that the documents filed by the first respondent with the Bill of entry and their authenticity were not questioned or doubted by the Revenue. Therefore, the Tribunal pointed out that there is every possibility of presumption in favour of genuineness of the documents, especially, when such presumption is not rebutted by the Revenue. 11. We have perused the invoice dated 12.11.1995 issued by the Afghan Motor Company in favour of the first respondent. It shows that the car with unit price of 24,050/- Dhs was sold on the same day by receiving the entire amount. The Private Vehicle Registration Book also shows that the first respondent is the owner of the said vehicle with registration dated 15.11.1995. In the very same Registration Book, the Insurance Policy No. SH/P/1215/95 is also mentioned by indicating that such Policy expires on 14.11.1996. The said certificate was substantiated by another document, viz, Insurance Certificate showing the Policy Number as 1215/SH P/95. Though the insurance certificate was made in Arabic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the said vehicle with valid documents and imported the same in this country with the support of such valid documents. 13. We cannot ignore the fact that the said Abdul Razak though gave a statement on 22.2.2000, had however immediately retracted the same on the very next day i.e. On 23.2.2000. No doubt, after a period of four months he wanted to stick on to the earlier statement given on 22.2.2000. Such contradictions and inconsistency on the part of the Abdul Razak only shows that there is no bonafide on his part. Therefore, the Tribunal was right in rejecting those statements as inadmissible in evidence. Even otherwise such statement alone cannot prove the case of the Revenue especially when the presumption in favour of those documents filed by the first respondent were not rebutted by the Revenue. Consequently we find that the order of the Tribunal based on its factual finding need not be interfered with, especially when the Revenue has not placed any other materials to contradict such factual findings. 14. The learned counsel for the Revenue relied on the decision of the Hon'ble Supreme Court in Surjeet Singh Chhabra Vs. Union of India (1997 (89) ELT 646 (SC)) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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