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TMI Blog2014 (1) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, statement of the accused is corroborated by statement of others who were involved in the activity - Shri Natesan Rajaramu and Shri Santha Padaiyachi Ramaswamy were not the main persons responsible for the impugned smuggling because they had no knowledge of concealment of gold in the goods. The main persons were in fact the Shri. Mohamed Rawthar and the appellant. Shri. Mohamed Rawthar could not be traced and hence proceedings against him is kept in abeyance. The appellant who had knowledge about the said person did not provide any information to trace the said person. There is no reason for giving any benefit to the appellant for having successfully shielded that person - Decided against assessee. - Appeal Nos.C/26, 27/2003 - FINAL ORDER No.40002-40003/2014 - Dated:- 6-1-2014 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri B. Kumar, Sr. Advocate Dr.S. Krishnanandh, Advocate For the Respondent : Shri K.S.V.V. Prasad, JC (AR) JUDGEMENT Per Mathew John; The appeals were heard at length through Senior Advocate Shri. B. Kumar on 29-07-2013. After hearing both sides Bench desired to know what was the source of certain documents reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports of persons, who were eligible to claim benefit of transfer of residence, from various places in Tamil Nadu. He admitted that he arranged passports of Rajaramu and Padayachi and handed over the passports to one Shri Chandramohan. 5. Thereafter, Chandramohan was summoned and his statement was recorded. It was Chandramohan who implicated the present appellant Hidayathullah @ Mannady Barakath. Chandramohan stated that Hidayathullah was earlier doing Lungi business. He stated that During Feb 01, the appellant informed him that the appellant wanted to bring gold biscuits by concealing in unaccompanied baggage and that he wanted passports with eligibility for transfer of residence concession. Shri. Naina Mohammed used to arrange passports with eligibility for transfer of residence concession and he used to give Naina Mohammed Rs.4500/- per passport from persons who collected such passports. The appellant through his connections in Dubai used to conceal gold biscuits in electronic goods and send it as unaccompanied baggage and when it reached Chennai International Cargo complex, appellant used to call him and give him Rs.25000/- to Rs.30000/- per baggage along with passport which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show cause notices to various parties proposing confiscation of the seized gold biscuits and also proposing penalties. None of the noticees claimed ownership of the seized gold. After adjudication, the seized gold biscuits were absolutely confiscated along with air-conditioners and music systems used for concealing the said gold bars under Section 119 of the Customs Act. Further a penalty of Rs.10,00,000/- was imposed on S. Hidayathulla @ Mannady Baraath (the appellant) in each order and Rs.5,00,000/- was imposed on Chandramohan in in each case under section 112(a) of the Customs Act, 1962. No penalty was imposed on S/Sh J. Purushothaman, Rajaramu and Santha Padaiyachi Ramaswamy by the adjudicating officer. Proceedings in respect of Mohamed Rawthar has been kept in abeyance because he could not be located. Aggrieved by the orders of the Commissioner, appellant has filed these appeals. 10. Ld. Senior Advocate for the appellant submits that there is no evidence against the appellant apart from the statement of Shri Chandramohan and appellants own statement. He submits that the two statements given by Shri. Chandramohan were retracted while he was in judicial custody. He argued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under COFEPOSA, Ld.AR submits that this is a document introduced by Shri B. Ramu while giving his second statement on 14-09-2001 and this is not a document which has come up through any search or seizure. The said statement reads as under: "With reference to your summons dated 13/9/2001, I am appearing before you and giving the following truthful statement under section 108 of the Customs Act, 1962. After my statement, I proceeded to my residence. When I reached my home my sister's daughter handed over certain documents to me when I asked how these documents came to my residence, she immediately told me some unknown person came in a blue colour car and handed over the documents to my sister's daughter and requested her to hand over to me. They also told that the said documents were given by Shri J. Purushotham Raja to be handed over to Ramu. My sister's daughter name is Selvi V. Thilagam. She is now at present staying with me. When I gone through the Documents, I found that the documents belongs to the consignments of Shri Natesan Raja Ramu and Shri Santha Padayachi Ramaswamy the documents contains two passports (1) Natesan Raja Ramu PP No. K552540 (2) Santha Padaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptable. He also pointed out that the goods that arrived in the name of Mr. Natsan Ramaraju was covered by master airway bill 176-1723-7146 dt. 25-08-2001 issued by Emirates Airways and these arrived on the next day i.e. on 26-08-2011. Further these master airway bills donot show that goods of more than one person were consolidated in the same Master Airway Bill. Similarly the goods in the name of Santha Padayachi Ramasamy was covered by Master airway Bill No. 176-1723-7150 dated 25-08-2001 and the goods arrived on the next day. This Master Airway Bill also does not show any consolidation or any co-correlation to the House Airway bills submitted on 14-09-2001 showing shipments during June 2001.These master airway bills were the documents showed the names of Natesan Ramaraju and Santha Padayachi Ramasamy and these were the documents based on which delivery of the goods was taken from the airlines. These Master Airway Bills are believable documents whereas House Airway Bills submitted by Shri B. Ramu are fabricated documents planted as evidence by Shri B. Ramu at the time of recording his second statement on 14-09-2001. So Ld. AR for Revenue submits that no credence should be given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Tribunal either. 19. Another argument that was raised was that the statements given by the co-accused namely Shri. Chandramohan on 19-09-2001 and 20-09-2001 were retracted by letter dated 27-09-2001 while he was in judicial custody and retracted statements have no evidentiary value. We note this retraction is 7 to 8 days after the original statement and also 7 days after his remand to judicial custody. Further no retraction by the Appellant from his statement dated 19-09-2001 is on record. The statement of the appellant is inculpatory and it also corroborates the statements originally given by Shri. Chandramohan. Therefore going by the decision of the Hon. Apex Court in the case of Surjeet Singh Chhabra (Supra) and Naresh J Sukhwani (supra) we do not see any reason to discard the statements dated 19-09-2001 and 20-09-2001 given by Shri Chandramohan and statement dated 19-09-2001 given by appellant himself. The decision of the Hon Apex Court in the case of Vinod Solanki was in a situation where the statement was retracted by the concerned person at the time of producing him before the Magistrate. An argument is also raised that any confession should be corroborated by oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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