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TMI Blog2008 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the ball bearings in the Panchnama, linking with import documents relating to import of identical goods or similar goods to show the value arrived at, it may not be advisable to accept the value in the Panchnama – Since there is no evidence of smuggled nature, confiscation can not be upheld. X X X X Extracts X X X X X X X X Extracts X X X X ..... posed of before 14-4-1998 and that the entire quantity of stock which was seized were procured by them during 16-4-1998 to 20-4-1998. (d) He was arrested and produced before the Magistrate on 27-5-1998 and he complained before the Magistrate that he was detained, threatened and made to right statement that he was suffering from diabetes and he was feeling uneasiness and pain in heart. On the orders of Magistrate, he was admitted to the jail hospital. However, he was not granted bail and was in the jail for about two months; (e) No statement was taken from Shri Kishan Chand and no summons were also issued to him for the purpose of recording his statement. Shri J.S. Anand who was identified as Bills by Shri Kishan Chand, was summoned severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere smuggled, but only submitted that the dalal, from whom he purchased had mentioned that they are smuggled from Nepal. Subsequently, he has changed his version that ball bearings have been procured from one Billa, (who has been identified by the Customs as J.S. Anand); (c) The statement of Shri Karam Chand was not voluntary. It was not believable that a person with poor health conditions stayed voluntarily overnight at the Customs House and resumed the statement very next day. Further, he has made the retraction at the earliest opportunity i.e when he was produced before the Magistrate. There was no corroboration to his statement; in fact, no statements have been taken from Shri Kishan Chand and from Billa @ J.S. Anand. He was only asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Shri Karam Chand. All particular variety of ball bearings 18,000 numbers which were shown as stock was not found in the seized quantity (that variety was not available for seizure), indicates that substantial quantity stood disposed of by them as seen from their own records, therefore, to claim that about 25,000 ball bearings were disposed of by 14-4-2008, as stated by Shri Karam Chand, appears to be correct; (b) The claim that he was forcefully detained overnight at the Customs House is not correct. He has also not made any such allegation before the Magistrate. It is his submitted that though he was allowed to go back home after the statement was recorded on 25-5-1998, he chose to stay back and continue the statement on 26-5-1998. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave carefully considered the submission from both sides. There is no direct evidence of smuggled nature of ball bearings from Nepal. While it is admitted that the ball bearings are of foreign origin, the only evidence is in the statement of Shri Karam Chand who submitted that the same were according to the dalals smuggled from Nepal. This evidence is of hear say in nature. In the later part of the very same statement, he has changed his version claiming that the goods were purchased from one Billa. The change of version has further weakened the admission. Such evidence could be accepted only if some corroboration is available. We find the statement of Shri Karam Chand stands retracted before the Magistrate at the earliest opportunity i.e on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the Panchnama. Panchnama is reliable for the quantum of goods seized and may not be reliable for the value mentioned therein. Further two Panch witnesses, who were reportedly in the same trade have given their views that the value adopted is on the higher side, during the cross-examination. Under these circumstances, we do not find any reason to reject the value of the bearings to be only Rs. 27 lacs as claimed by the learned advocate. However, it is only an academic issue as we are holding that there is no evidence of smuggled nature of the bearings and we are not sustaining the confiscation of the ball bearings. 7. Therefore, we allow both the appeals with consequential relief. (Dictated and pronounced in the open Court on the 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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