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TMI Blog2024 (10) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been recorded under duress. Moreover other than the statement of the driver, there is no corroborative evidence indicating that the sugar loaded in the truck was going to the smuggled into Nepal.' Admittedly, in this case, the statement of Shri Suman Chandra Paul is not recorded on the authorization given by any officer of Customs in this behalf, by General or Special Order from the Principal Commissioner of Customs or Commissioner of Customs, to examine any person during the course of enquiry in connection with the smuggling of any goods. Therefore, the statement recorded from Shri Suman Chandra Paul is not an admissible evidence to implicate the Appellants in this case - the penalties imposed on both the Appellants are set aside. Appeal allowed. - HON BLE SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Shri Arijit Chakrabarti, Advocate Shri Dulal Krishna Paul Shri Nilotpal Chowdhury, Advocate for the Appellant Shri Subrata Debnath, Authorized Representative for the Respondent ORDER Order : [ PER SHRI ASHOK JINDAL ] The appellants are in appeal against the impugned order wherein a penalty of Rs.25,00,000/- has been imposed on the Appellant No. 1 (viz. Shri Dulal Krishna Paul) and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as incriminating documents or things. The Seizure was effected vide case No. 08/CL/IMP/Gold/ DRI/ GAU/2014-15 dated 27.02.15 having estimated value of Rs. 4,51,41,028/- (Rupees four crore fifty one lakh forty one thousand six hundred and twenty eight) only. The seized gold bars/biscuits were deposited in the Customs Divisional Godown, Guwahati vide V.R. No. 38/14-15 dtd 28.02.2015. The samples of the said goods were also drawn and sent for examination. The test report of the said gold bars given by Jag Mohan Soni, H в. Road, Fancy Bazar, Guwahati certified that the purity of the seized gold bars was in between 995 ppt (part per thousand) to 996 ppt (ii) In his statement given on 27.2.2015, Sri Bablu Thapa inter-alia stated that he started from Imphal for Guwahati on 26.2.2015 morning with two other persons viz Sri Suman Paul of Karimganj, Assam and Sri Bishnu Prasad Kharel of Senapatı. Manipur, who was a relative of him and accompanied him as he was having some personal work at Guwahati. He admitted the fact that the gold bars/biscuits were secreted in the vehicle and also shown the place where the gold bars/biscuits were secreted. He also admitted that on demand, he co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and that he purchased the same from Imphal. (iii) In his statement given on 27.2.2015, Sri Suman Chandra Paul inter-aba stated that he was engaged in the trade of transporting of gold. That, on 24.2.2015, he left Karimganj for Imphal via Guwahati by bus and on 25.2.2015, he left for Dimapur from Guwahati by Shatabdi Express and after reaching there, he left for Imphal from Dimapur by bus and stayed there in a hotel at night. That, on 26.2.2015, he left for Kanglatongbi, Imphal after receiving the phone call of Bablu Thapa That, after reaching there, he along with Sri Bablu Thapa and Sri Bishnu Prasad Kharel, a relative of Bablu Thapa, left for Guwahati by Bablu Thapa's Maruti Ecco car bearing registration No. MN-01W-7635. That, he knew that the said gold were brought into India from Myanmar through Moreh border which he came to know from Sri Bablu Thapa and one Sri Dulal Krishna Paul of village- Roynagar, Karimganj. On being asked about Sri Dulal Krishna Paul, he stated that he is a distant relative of Sri Dulal Krishna Paul and went to Imphal to bring the said contraband gold as per his direction. He further stated that four months back, he brought 16 (sixteen) Kgs. of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person in the vehicle boarded from Kanglatongbi and he did not know him. He never knew that gold were secreted in the vehicle. He came to know about that when DRI Officers intercepted the vehicle and later on saw it when the same were recovered by the DRI Officers. (v) Sri Bablu Thapa, and Sri Suman Chandra Paul were arrested and produced. before the Hon'ble Chief Judicial Magistrate along with sample drawn, Inventory of Goods seized, Panchnama and a report who after perusing the records was pleased to remand them to 14 days judicial custody vide order dated 13.3.2015. (vi) Sri Dulal Krishna Paul did not appear before the investigation for subscribing statement etc., on 20.04.2015 however, he appeared on 5.5.2015 and inter-aha stated that Sri Suman Paul is his nephew and eldest son of Kalıpada Paul, his elder brother. He further stated that he came to know from hearsay that Sn Suman Paul was in Central Jail, Guwahati in connection with transportation of illegal gold. He stated that Sri Suman Paul did not have a good relationship with him as well as with his parents and stayed with his family here and there Further, he also stated that his brother Kalipada Paul stayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Suman Chandra Paul and Sri Bablu Thapa were again summoned to appear before the investigation on 21.5.2015, 26.6.2015 and 22.7.2015 for further examination. But they did not appear on the given dates in spite of the fact that Sri Suman Paul had received the summon. Role of the Appellant No. 1: (e) Sri Dulal Krishna Paul has been named as the owner of the impugned gold by above said Sri Suman Chandra Paul who is his nephew. Sri Dulal Krishna Paul's family is in the trade of gold and silver jewellery and they have a jewellery shop in the name and style of P.P. Jewellers at Karimganj. Being in the trade of gold and Sri Suman Chandra Paul being kin by blood, there is no reason as to why Sri Suman Paul should name him as the owner of the impugned gold and that he was engaged by said Sri Dulal Krishna Paul himself. As such it appears that said Sri Dulal Krishna Paul together with Sri Kamal Basnet, Bablu Thapa and Sri Suman Chandra Paul have hatched criminal conspiracy and accordingly brought into India, the impugned gold from Myanmar through an unauthorized route in violation of provisions of the Customs Act and other statutory order/s for the time being in force and referred to he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 107 of the Customs Act, 1962 which has got no evidentiary value in law. Section 107 of the Customs Act, 1962 authorizes any Officer of Customs, empowered in this behalf by General or Special Order from the Principal Commissioner of Customs or Commissioner of Customs, to examine any person during the course of enquiry in connection with the smuggling of any goods. As such, for conducting examination u/s 107 of the Customs Act, 1962, there is requirement of General or Special Order from the Principal Commissioner of Customs or Commissioner of Customs in favour of the said Officer of Customs. Therefore, it is his contention that the statement recorded under Section 107 of the Act cannot be relied upon, as held by the Tribunal, New Delhi in the case of Commissioner of Customs (Preventive), Lucknow v. Sheo Shankar Jaiswal [2010 (261) E.L.T. 187 (Tri. Del.)]. Accordingly, he prays that the penalties on the Appellants are not imposable. 4.1. The Ld. Counsel for the appellants also submits that the penalty on Shri Dulal Krishna Paul has been imposed based on the statement of Shri Suman Chandra Paul (Appellant No. 2) recorded under Section 107 of the Customs Act, 1962. As the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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