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TMI Blog2016 (5) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the helper are hearsay evidences without any corroboration and authenticity. It is not on record as to from where the driver & helper got the conviction that seized goods were to be sent to Nepal and whether on earlier occasions they had taken similar consignments of clothes to Nepal. On the contrary, the documents produced by the owner of seized clothes regarding licit acquisition of seized goods were not at all investigated by the department. So, in the absence of any other corroboration, the statements of co-accused driver and helper cannot be made the clinching evidences to decide the case against the appellants. There is also no evidence on record whether the seized goods were actually moving towards the border. Rather as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting the seized goods and Bhola Shah is implicated based on the statement of the driver and helper Shri Ranjit Kumar. It was submitted by Learned Advocate that officers of E Coy 13th BN SSB Pantoka intercepted one mini truck BR 05 G 2552 loaded with bundles of clothes and was found moving towards Motihari. That during checking of vehicle one bill No. 733 dated 11/12/12 was recovered from the vehicle and it was issued by M/s. Vinayak Vastralaya, Inder Chowk, Kathmandu. That though this document was issued in Nepal but para 4.6 at page 10 of the Order-in-Original refers it to be issued by Mehak Enterprises, Ludhiana to Vinayak Bastralaya, Kathmandu, Nepal.That this document did not belong to the appellant and was disowned. That this document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate made the bench go through para 19 of the Apex Court s decision in the case of Mohtesham Mohd. Ismail Vs. Special Director, Enforcement Directorate [(2007) 8 Supreme Court cases 254] to argue that a confession of a co-accused person cannot be treated as a substantive evidence and is acceptable only when other evidences also suggest the act. That in the present proceedings there is no other independent corroborative evidence to support the statement of driver and helper. On this issue Learned Advocate also relied upon para 17 of the case law Assistant Collector of Customs Vs. Amrik Singh [2014 (301) ELT 170 (P H)]. 2.1 Learned Advocate further relied upon the following case laws to support his arguments that there is no attempt to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. That documents produced by appellant Ram Chandra Kandoi were without signature and issue date and were not found acceptable by the Adjudicating authority in para 4.11 of Order-in-Original dated 25/4/14. Learned A.R. thus strongly defended the orders passed by the lower authorities. 4. Heard both sides and perused the case records. The issue involved in these proceedings is whether clothes seized by the department on 16/4/2013 from vehicle No. BR -05-G-2552 were meant for export to Nepal illegally. Learned first appellate authority has passed following observations and order on the issue under Order-in-Appeal dated 23/7/2014 while rejecting appeals of the appellants:- Heard both sides. I find that the Ld. Adjudicating Authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the helper are hearsay evidences without any corroboration and authenticity. It is not on record as to from where the driver helper got the conviction that seized goods were to be sent to Nepal and whether on earlier occasions they had taken similar consignments of clothes to Nepal. On the contrary, the documents produced by the owner of seized clothes regarding licit acquisition of seized goods were not at all investigated by the department. 4.2 On the issue of confession of a co-accused, Apex Court in the case of Mohtesham Mohd. Ismail-Vs.-Spl. Director (supra) made following observations: Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom both sides, I find that the show cause notice itself records that the driver was carrying some documents and that one of the appellants Shri A.N. Singha Ray has also submitted some documents subsequently. However, the impugned order makes no mention of these documents and proceeds to conclude that the sugar was being carried without any licit documents/papers. After considering the entire facts and circumstances of the case, I am of the opinion that no case has been made out to prove attempt to export sugar and hence the orders passed by the lower authorities cannot be sustained. Consequently, the impugned order is set aside and the appeals are allowed with consequential benefit to the appellants. 6. In the absence of any other co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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