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TMI Blog2015 (2) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... hat consequently, the retraction was invalid. We find no fault with the manner in which the Commissioner appreciated the evidence before him. The appellant was permitted to cross examine Sanjay Maheshwari, which he did, extensively. In this connection, it was urged that the said individual had admitted not having met the appellant at all and consequently his deposition could hardly have implicated the former. While this is correct, yet that admission is to be viewed in the context. Sanjay Maheshwari also stated that though he had not met the appellant, he had conversed with him. Court notes that proceedings under tax legislation such as the FCRA or the Customs Act do not require the prosecution to discharge the criminal-law burden of proof beyond reasonable doubt. Under such proceedings, a balance of probabilities is satisfactory. - It is not the task of this Court, exercising its appellate power in cases involving substantial questions of law, to review or secondguess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities, but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari was further due to pick up 11,000 metres from Prakash Transport, Kishan Ganj, but was unable to do so. The Prakash Transport godown was searched, but nothing was found. 4. On 27.1.1998, the Customs again searched the godown, and this time took into possession 206 bales of polyester curtain and suiting cloth. Consequently on 29 and 30.1.1998, the appellant was taken into custody, and a confessional statement was recorded by him. The next day - i.e. 31.1.1998, the appellant was produced before the court, where he retracted his confessional statement. Thereafter, the Customs issued him a Show Cause Notice with respect to the polysester curtain and suiting cloth goods. On 17.07.1998, a Show Cause Notice was also issued to the appellant (and others) in respect of the Chinese silk goods. There were, therefore, two separate Show Cause Notices and two separate proceedings, one related to Chinese silk and the other to polyester cloth. 5. On 04.02.2000, the Commissioner of Customs passed an order in respect of the polyester goods, and imposed a penalty. On 28.09.2000, the Commissioner of Customs also passed an order against the appellant in the case relating to Chinese silk, and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri. M.P. Goenka and Shri. Sanjay Maheshwari there is no independent evidence to establish the involvement of the two persons with the smuggled Chinese Silk is also without merit. 42.4.2. Firstly it is seen that the retraction of the Conoticee Shri Sanjay Maheshwari has no weight and his confessional statement is binding. Secondly, as has been held by CESTAT in the other case of polyester curtain cloth, it has to be seen whether in view of Shri. M.P. Goenka's retraction, there is any corroborative evidence to establish his involvement in the smuggling of Chinese Silk. 42.4.3. In his statement Sanjay Maheshwari refers to the supplies of Chinese Silk by Goenka from Kathmandu which he sold on commission basis. In the cross examination also, notwithstanding his several flip flops, and contradictions, he confirms quite categorically that he did have transaction with Goenka, that these were on commission basis and not on purchase/sale basis, that these were of Chinese silk, that the transaction were on phone, that Goenka's man used to collect the payments. (Queries 26, 27, 31, 53, 54, 56-57, 64-65). These are also part of his confessional statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 112 (b). 9. On this basis, the penalty of `5 lakhs was imposed upon the appellant. The appellant filed an appeal before the Tribunal, numbered C/147 /2009-CU(DB), which was dismissed on 15.09.2014. The Tribunal held: 13.1 It is a proved case of finding of Chinese silk in Maruti van as well as in the premises of Shri Sanjay Maheswari when the live link showing origin and movement thereof through the transporter Prakash Transport Company from Nepal supplied by Shri Anil Jatia to Shri M.P. Goenka was on record and that could not be rebutted. Arrival of such goods in India through Prakash Transport Co. and release thereof from that transporter on instructions of Shri M.P. Goenka through his person Shri Monu Haldar also could not be ruled out by the appellants. 13.2 Shri M.P. Goenka categorically brought out in his statement made on 21.09.1998 that when he visited Kathmandu, he came across on Shri Anil Jatia, one of the owners of Shri Annapoorna Textiles Ltd. and he was able to strike deal with him for Chinese silk to be supplied to Shri Sanjay Maheswari of Delhi on commission basis. Such fact comes out from paras 10.1 and 10.2 of the adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. And, subsequently: Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage. 12. Thus, Vinod Solanki (supra) merely holds that a retracted confession ought to be considered in light of the totality of circumstances, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. 14. In K.I. Pavunny v. Asst. Collector (HQ) Central Excise Collectorate, Cochin 1997 (90) ELT 241 SC the Supreme Court held: Even though the Customs officers have been invested with many of the powers which an officer in charge of a police station exercises while investigating a cognisable offence, they do not, thereby, become police officers within the meaning of Section 25 of the Evidence Act and so the confessional statements made by the accused persons to Customs officials would be admissible in evidence against them. the object of the Act is to prevent large-scale smuggling of precious metals and other dutiable goods and to facilitate detection and confiscation of smuggled goods into, or out of the country. The contraventions and offences under the Act are committed in an organised manner under absolute secrecy. They are white-collar crimes upsetting the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case, the Commissioner found that there was no proof of duress, and that consequently, the retraction was invalid. We find no fault with the manner in which the Commissioner appreciated the evidence before him. The appellant was permitted to cross examine Sanjay Maheshwari, which he did, extensively. In this connection, it was urged that the said individual had admitted not having met the appellant at all and consequently his deposition could hardly have implicated the former. While this is correct, yet that admission is to be viewed in the context. Sanjay Maheshwari also stated that though he had not met the appellant, he had conversed with him. 17. The appellant, therefore, is incorrect in arguing that his order of penalty was based entirely on his retracted confession. On the contrary, his confession was not taken into account in deciding upon his involvement in the offence. What was taken into account was: a. The confessional statement of Sanjay Maheshwari, directly implicating the appellant b. Statements of the godown keeper and manager of M/s. Prakash Transport c. Documentary evidence, such as the panchnama drawn for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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