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TMI Blog2023 (3) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... orti, Adv. Mr. Prabir Bera, Adv. Mr. Deepak Sharma, Adv. ...for the respondent in CUSTA/23/2022. Mr. Arnab Chakraborty, Adv. Mr. Aniket Chaudhury, Adv. ...for the respondent in CUSTA/22/2022. ORDER The Court : These appeals filed by the revenue under Section 130 of the Customs Act, 1962 (the 'Act') are directed against the common order passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, Regional Bench in final order Nos.35842 to 75847 of 2021 and Miscellaneous Order No.75251 of 2021 dated 20th December, 2021. The revenue has raised the following substantial questions of law for consideration: I. Whether the order of the Learned Tribunal is totally perverse, contrary to the records and not going through the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss error in not appreciating that the statements recorded under Section 108 of the Customs Act, 1962 during course of enquiry were made voluntarily without vitiating any of the premises as envisaged in Section 24 of the Evidence Act, 1872 and the same are having evidentiary value to prove the impugned goods were of smuggled nature? VI. When the statements made under section 108 of the Customs Act, 1962 before the Customs officer is not covered by Section 25 of the Indian Evidence Act, 1972 and when such statement has not been obtained under threat, whether the cross examination is sustainable? VII. Whether there is perversity and inherent error of jurisdiction in the order of the Learned Tribunal since the Respondent could not beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 123 of the Customs Act and the said provision applies only in respect of goods which are smuggled and smuggled goods means something suggesting that they are of foreign origin and their recent importation from abroad. In this regard, reliance was placed on the decision in the case of Shantilal Mehta vs. Union of India, reported in 1983(14) ELT 1715. The Tribunal noted that the facts of the case on hand were identical to that of the facts in the case of Sudhir Saha and that the burden of proof to establish the smuggled nature of the seized goods was on the department and taking note of the factual position, the Tribunal held that the department miserably failed to discharge the burden cast upon them. Further, the Tribunal took note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the smuggled nature of the seized goods and, thus, discharge the burden of proof cast upon the revenue in this respect. Further, the Tribunal examined the other factual aspects and found that the documents on record show that the goods were purchased from local markets and/or from Mandi located in Jalpaiguri district of West Bengal. The said purchases of agricultural produce such as betel nuts are regulated by the respective District Regulated Market Committees and the Sub-divisional Officers in terms of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. Further, the Tribunal noted that copies of the receipts issued by the Market Committees were on record evidencing that the market fee was paid by the respondents and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022 had retracted the statements on 16th March, 2016 before the learned Additional Chief Judicial Magistrate, Siliguri before whom he was produced after arrest. Thus, in the absence of any independent evidence to bring home a charge of smuggling, the Tribunal set aside the adjudication order. Furthermore, the Tribunal noted that there was no discussion on the retraction of statements made on oath by the respondents and the witnesses who implicated the respondents were not produced for crossexamination in spite of a specific request made by the concerned respondent and this request was rejected on the ground that the occupants of the trucks had allegedly described the true facts in course of the statements recorded under Section 108 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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