9911796707
TMI Blog2021 (1) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any independent corroborative is correct to law? 2.Whether on the facts and in the circumstances of the case the honourable Tribunal was right in not considering the judgment of the criminal courts at acquitting the appellant from all charges is connected law? And 3.Whether on the facts and in the circumstances of the case the honourable Tribunal was right in sustaining the penalty on the appellant and the co-accused were discharged from all charges and in the adjudication proceedings?" 3.Heard Mr.A.Thiyagarajan, learned Senior Counsel for Mr.S.Ramesh Kumar, learned counsel for the appellant/assessee and Mr.T.Pramod Kumar Chopda, learned Senior Standing Counsel for the 1st respondent/Revenue. 4.The appellant has filed this appeal challenging the order passed by the Tribunal, allowing the appeal filed by the appellant partly and reducing the penalty imposed under Section 114 of the Act on the appellant from Rs. 25 Lakhs to Rs. 15 Lakhs. 5.The officers of the Customs Department conducted search operations on 10.03.1998, in a godown at No.111, Ettaiyapuram Road, Tuticorin, and found cartons stacked in the Southern side of the godown. There were three persons present in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lots to Tuticorin, and that Alexander received the sandawood and kept it in the godown and this sandalwood in godown was packed in cartons and arrangement was made to send the same to Singapore under the guise of tiles and even after two months, Alexander could not arrange for export of sandalwood and that the appellant met one Maideen of Mannadi, who was an exporter at Chennai and when he contacted Maideen, he informed the appellant that illicit export can be arranged through one Janarthanan @ Janar at Tuticorin through his relative Mohan and made arrangement to export and the appellant met Janar on 02.03.1998 and requested to arrange for a godown and he did so through his friend Hari and that Hari did not know anything about the sandalwood and the sandalwood belong to Dhanapal and he did not know from where and whom, Dhanapal got sandalwood and Dhanapal told him that the sandalwood was to be exported to R.N.Enterprises at Singapore and hence, the marking on the cartons was R.N.E and that he was using a fictitious name as Nathan and the seized visiting card bearing the name of Rahuman Sait, Managing Partner of Badhusha Tanning Company, belongs to him and the chit, which was seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same as roofing tiles and therefore, it was held that the statement of the appellant, as initially given on 11.03.1998, is true and has to be believed. Further, the Original Authority held that the appellant has played substantial part in the attempt to illicitly export sandalwood, that he was fully aware that sandalwood was a prohibited item for export, that the appellant was found in the godown while in the process of concealing the sandalwood under roofing tiles and that there is material to show that he was in constant contact with Dhanapal, Maideen and Janar and on the appellant's advice only, the shipping bill was filed by Janar and held that the retraction made by the appellant, vide his letters are only an afterthought and accordingly, rejected the same and levied penalty, vide order dated 29.04.1999. 10.Aggrieved by the same, the appellant filed appeal before the Tribunal. Parallelly, prosecution was initiated against the appellant and others in C.C.No.2 of 2003 on the file of the Additional Chief Judicial Magistrate and the appellant was the fifth accused in the criminal case. The appellant and others, against whom penalty was imposed by the Original Authority, vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other incriminating material against the appellant and the same could not have been used to hold the appellant guilty especially when, the appellant has retracted those statements at the earliest point of time. 14.Further, the learned Senior Counsel submitted that the appellant was only a worker and he had not violated any of the provisions of the Act and the order passed by the Tribunal imposing a penalty of Rs. 15,00,000/- on the appellant is arbitrary and unreasonable. In support of his contention, the learned Senior Counsel referred to the decision of the Hon'ble Supreme Court in Collector of Customs, Madras & Ors. vs. D.Bhoormall [(1974) 2 SCC 544], with regard to the burden of proof while taking action to confiscate goods under the provisions of the Act. 14.1.Reliance was placed on the decision of the Hon'ble Supreme Court in K.T.M.S.Mohd. & Anr. vs. Union of India [(1992) 3 SCC 178], with regard to the effect of the statement, which was initially recorded from the appellant and subsequently, retracted and as to how the authority failed to take note of the retraction of the appellant, which was bonafide. 14.2.Reliance was placed on the decision in the case of K.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench of this Court in C.M.A.No.93 of 2009, which was allowed by judgment dated 27.02.2015 and the said Janar was held to be liable to pay the penalty. Further, it is submitted that the order of acquittal, passed by the Additional Chief Judicial Magistrate, Madurai, in C.C.No.2 of 2003 dated 23.05.2008, was set aside in an appeal filed by the Department before the Madurai Bench of this Court vide order dated 19.10.2019, in Crl.A.(MD) Nos.58 and 59 of 2009. 18.Further, it is submitted that the Adjudicating Authority had afforded effective opportunity to the appellant to put forth his case and has passed a very detailed order taking note of all the facts and as such, no substantial question of law arises for consideration in this appeal especially when, the Tribunal re-appreciated the facts and confirmed the order passed by the Adjudicating Authority. With the above submissions, the learned Senior Standing Counsel prayed for dismissal of the appeal. 19.The first aspect, which we need to consider is whether the Adjudicating Authority was right in rejecting the retraction made by the appellant, vide letters dated 01.06.1998 and 01.07.1998 and holding the appellant guilty based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint laid by the Customs Officers for prosecution under Section 135 or other relevant statutes. Further, it was held that there is no prohibition under the Evidence Act to rely upon a retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession. Further, it was held that it is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confession statement. The Court is required to examine whether the confessional statement was voluntary, in other words, whether it was not obtained under threat, duress or promise and if the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true and if the Court, on examination of the evidence, finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, dated 27.02.2015 in an appeal filed by the Department. Furthermore, the appellant cannot also fall back on the order of acquittal passed by the Criminal Court because, the same has been reversed and the appellant and others have been convicted pursuant to the judgment of the Madurai Bench of this Court in Crl.A.(MD) Nos.58 and 59 of 2009, dated 19.10.2019. In any event, the Adjudicating Authority is empowered to independently proceed and there is no requirement that he has to await the outcome of the criminal proceedings. 25.Considering the facts and circumstances of the present case, more particularly, when the present case arises under the provisions of the Act, the appellant cannot place reliance on the decision in the case of Capt.M.Paul Anthony, which was the matter concerning the service condition of the appellant therein. The said decision is wholly inapplicable to the case on hand. The Tribunal, which is the last fact finding forum, has re-appreciated the factual matrix and rendered a finding that on the date when the officers of the Department conducted search operations in the godown at Tuticorin, the appellant was present and the cartons, which were lying in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
