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TMI Blog2011 (9) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... s purchased from Dhan Cholia Sons, Delhi, has been found to be false leading to the irresistible conclusion that it was contraband goods, having been smuggled from a country of third origin - appeal dismissed - decided against appellant. - Miscellaneous Appeal No.393 of 2009 - - - Dated:- 9-9-2011 - Mr. Sudhir Kumr Katriar and Mr. Ahsanuddin Amanullah, JJ. For the Petitioner : M/s Sandeep Kumar, Santosh Kumar, Ajit Kumar, Advocates For the Respondent : Ms. Archana Meenakshi, Senior Standing Counsel ORDER S K KATRIAR, J. This appeal under Section 130 of the Customs Act 1962 (hereinafter referred to as `the Act ), is directed against the order dated 22.12.2008, passed by the learned Customs, Excise and Service Tax Appellate Tribunal, eastern Zonal Bench, Kolkata, in Custom Appeal no.105/2008 (Md. Akhtar vs. Commissioner, Central Excise), whereby the order of the two authorities below have been upheld, and the order of confiscation of gold, and penalty, has been upheld. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. On 20.8.2000, at 17 hours, the appellant was detained by the police at Barauni. The local police i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r duress. The cause shown by him has not been considered. He further submits that the materials on record do not show that the gold which the appellant was carrying was smuggled. He also submits that in view of the position that no person has come forward to claim ownership of the contraband goods, the same may be returned to him treating him to be the owner. He next submits that he was acquitted in the criminal case on the self-same facts. He further states that the entire onus in such a situation is on the Department that the seized goods are contraband goods. He lastly submits that he has no objection if the order of penalty is maintained, provided the gold is released particularly because none else has come to claim its ownership. 4. Learned counsel for the respondent has supported the impugned order. She submits that the appellant has taken contradictory stand at various stages. She next submits that the stand taken by the appellant in the cause shown by him has been found by the authorities to be false. She submits in the same vein that the later stand amounts to retraction which in the present case was quite belated. She next submits that the statement under section 108 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the statements that the same belonged to one Rajeshwar Giri at Raxaul (India), to be carried to Benaras. There is only material contradiction in these two statements, namely, in his statement under section107 of the Act, he gives his address to be 24 Parganas, West Bengal, whereas he has stated in his statement under section 108 of the Act that his permanent address is district Begusarai. He has stated that he is a petty carrier of contraband goods for remuneration for his livelihood. On this particular occasion, he was doing this job for a sum of ₹ 200/- only. 6.1. On the other hand, he stated in the cause shown by him on 23.2.2001, that he admits that the goods so recovered from his body which he was secreting in the aforesaid manner. He, however, stated that the same belonged to one Prabhu Nath Singh, which had been purchased from Dhan Cholia Sons, a dealer in gold, silver, and ornaments manufacturer and commission agent, Chandni Chowk, Delhi, meant to be converted into jewellery. 7. On a consideration of the entire materials on record, the learned three authorities have consistently found that the appellant was admittedly carrying the 9 bars of gold on his body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 9. The Supreme Court has observed in K I Pavunny v. Assistant Collector (supra), on the issue of evidentiary value of retracted confessional statements under the Act. Paragraphs 5 to 8 of the judgment are relevant and reproduced hereinbelow:- 5. The primary question, as referred to us for consideration, is whether the retracted confessional statement, Ext. P-4, by the appellant is inadmissible in evidence under Section 24 of the Evidence Act and what is the scope for its consideration? .........................................Section 24 of the Evidence Act deals with admissibility of the confession. It reads as under: 24. Confession caused by inducement, threat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to serve summons to produce a document or other thing or to give evidence and the person so summoned is bound to attend either in person or by an authorised agent, as such officer may direct, is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things as may be required. The power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Act. He is empowered to investigate into the infringement of the provisions of the Act primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate into an offence triable by a Magistrate, nor has he the power to submit a report under section 173 of the Code of Criminal Procedure (for short `the Code ). He can only make a complaint in writing before a competent magistrate. The above law was laid down under the Sea Customs Act, the predecessor of the Act. The ratio therein equally applies to the powers exercised by the Customs Officer is not a police officer nor is he empowered to file charge-sheet under Section 173 of the Code though he condu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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