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TMI Blog2006 (4) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... quired but in the present case the appellant hopelessly failed to establish their prima facie case that the lumps of gold seized from the respondents were of foreign origin or smuggled by them into India. Relating to the shifting of burden of proof in view of Section 123 of the Customs Act, we have already given the answer through our discussion made above that, the respondents were able to discharge to their onus and the appellant failed to establish that the gold seized from respondents were smuggled into India. We are clearly of opinion that the Tribunal i.e. CEGAT rightly observed that it is well-settled that sufficiency of evidence does not raise any question of law and rightly rejected the application for making reference to this Court. Thus, we find no merit in the appeal. There is no substantial question of law involved in the present appeal which requires reference to this Court for giving answer to the points of reference. The appeal accordingly fails and is dismissed. We make it clear that there will be no order as to costs. - BHASKAR BHATTACHARYA AND P.N. SINHA, JJ. Shri N.C. Roy Chowdhury and Ramesh Chowdhury, for the Appellant. Shri Ashok Gupta, Bidyut Dutta and Bij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n waist belt recovered from respondent no. 2 Md. Munaf was found to contain 8 pieces of gold of different sizes in the shape of gold lumps along with some remnant pieces of gold. The remnants of gold were recovered from one paper packet. The waist belt of respondent no. 1 Shri Rao was found to contain 3 lumps of gold of different sizes and weights bearing heat. The total weight of the gold recovered from the P.L. Rao was 1091.9 gms. approximately and the total weight of the gold recovered from Md. Munaf was 760 gms. approximately and the above gold pieces were wrapped in 2 packets with torn Hindi newspaper. 6. The said two persons could not produce valid documents in support of the acquisition or possession of the gold in question. The Customs Officers had reasonable belief that the said two persons smuggled gold into India in contravention of the provisions of the Customs Act, 1962 and were liable to confiscation. On the above plea, the gold lumps were seized by the Officers concerned under different seizure memos prepared separately in the name of the said two persons. 7. The statement of the said two persons, namely, Md. Munaf and P.L. Rao were recorded in the Customs House unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the Customs Office and there the respondents made voluntary statements which are statements recorded under Section 108 of the Customs Act. The value of such statement made voluntary by the respondents and recorded under Section 108 of the Customs Act is a confessional statement. Mr. Roychowdhury contended that it is well-settled that, Customs Officers are not police officers and statement recorded under Section 108 of the Customs Act cannot be regarded as statements recorded by police officer during investigation. Confessional statement made before police is inadmissible in evidence whereas, the statement made before the Customs Officers under Section 108 of the Customs Act are admissible in evidence and evidentiary value. Such statements recorded under Section 108 of the Customs Act are not hit by Section 25 of the Indian Evidence Act. 13. Mr. Roychowdhury also submitted that the statements of the respondents consist of several pages and it was recorded by the Customs Officer on the basis of voluntary statement made by the respondents and each page bears signature of the respondents. The fact that the respondents put date 5-2-92 under their signatures whereas the Customs Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 1999 (113) E.L.T. 804 (Mad), Surjeet Singh Chhabra v. Union of India reported in 1997 (89) E.L.T. 646 (S.C.) and K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin reported in 1997 (90) E.L.T. 241 (S.C.) = (1997) 3 SCC 721. 15. Mr. Roychowdhury also submitted that the subsequent explanation given by the respondents that they came from Andhra Pradesh for the purpose of preparing Bengali designed gold ornaments on the basis of orders placed by some customers is not believable when no Bengali designed ornament was recovered from their possession. If they came from Andhra Pradesh why the gold was found wrapped with torn Hindi newspaper. They disclosed that they obtained the foreign made gold from one Donger Singh and as per his advice mixing alloy melted the gold. Under Section 123 of the Customs Act, the Customs Authorities was able to discharge burden of proof and the respondents failed to establish their case to shift the onus on the Customs Authorities to establish that the seized gold were not of foreign origin or were not smuggled. Gold is a notified item under Section 123 of the Customs Act and the initial burden of proof was properly discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by threat and coercion. The manner in which the statements were recorded as it appears from the statements will reveal that the signatures of the respondents were obtained under threat on blank papers and that is why the signature of the respondents bears the date 5-2-92. The Customs Officers filled up the statements according to their wish on those papers and towards end, the gap of writings were very narrow and not like the normal gaps as found in any other pages and the signatures of the Customs Officers who recorded the statement bears the date 5-2-92/6-2-92. 18. Mr. Gupta further submitted that, if the statements of the respondents were voluntary there would not have been difference of dates and towards end, there would not have been so narrow gaps in the lines. The narrow gaps towards the end of the statements clearly suggests that the statements were manufactured after obtaining signatures of respondents on blank papers, and that is why, the Customs Officers had to complete the alleged statements under Section 108 within the pages which contained the signatures of the respondents taken earlier. After obtaining such alleged statements in Customs House, there was no need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Profits Tax, West Bengal v. Jeewanlal Ltd., Calcutta reported in 1951 (20) ITR 39 (Cal), Pushalal Mansinghka (P) Ltd. v. Commissioner of Income Tax, Delhi, Rajasthan and M.P. reported in AIR 1967 S.C. 1625, Kusumben D. Mahadevia v. Commissioner of Income Tax, Bombay City reported in 1960 (39) ITR 540 (S.C.), Manindra Chandra Dey v. CEGAT reported in 1992 (58) E.L.T. 192 (Cal), Dalip Singh v. Union of India Ors. reported in 1989 (43) E.L.T. 415 (Del.) = 1987 (13) ECR 1024 (Delhi), K. Babu Rao Ors. v. Collector of Customs, Cochin reported in 1986 (26) E.L.T. 766 (Tribunal) and Directorate of Enforcement v. Deepak Mahajan Anr. reported in 1944 (70) E.L.T. 12 (S.C.) = AIR 1994 S.C. 1775. 20. We have duly considered the submissions made by the learned Advocates for both the parties and perused the materials on record and the decisions placed by them before us on legal principles. At the very outset, we make it clear that the principles of law relating to a statement recorded under Section 108 of the Customs Act by a Customs Officer is well-settled. Therefore, there is no need of detailed discussion over the decisions placed before us by Mr. Roychowdhury for the appellant to streng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... netheless the caution contained in law is that such a statement should be scrutinised by the Court in the same manner as confession made by an accused person to any non-police personnel. The Court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the test prescribed in Section 24 of the Evidence Act. If such a statement is impared by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceeding. The Supreme Court in the said decision observed that the decision of the Andhra Pradesh High Court in Assistant Collector of Central Excise v. Duncan Agro Industries Limited reported in 1992 (57) E.L.T. 545 (A.P.) is not a good law. 22. In the instant matter before us it requires consideration as to whether the alleged statements made by the respondents on 5-2-92 before the Customs Officers can be regarded as voluntary statements under Section 108 of the Customs Act or, whether such statements were obtained under coercion or threat and, whether such statements were recorded after issue of summons as required under Section 108 of the Customs Act. It appears that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were converted into the alleged statements. Even if we brush aside the subsequent contention of the respondents made through the affidavits that their signatures were obtained on blank papers, the manner of recording statements and the writings of the statements as it appears lead to the irresistible conclusion that the statements were not voluntary. 25. If the statements were recorded voluntary then at the last page of the statements there would not have been so narrow gap and distance between the lines would not have been less than that of the distance of lines and gaps appearing in other pages. It is also not clear to us as to why in page 1 of the statements one signature would appear in the middle of the pages and the other signature would appear at the end of the page of statements. Besides that, the respondents signatures bear the date 5-2-92 whereas, the signatures of the Customs Officers appearing on the alleged statements are with date 5-2-92/6-2-92. If the statements were voluntary as argued by Mr. Roychowdhury there would not have been difference relating to the dates as after the alleged signatures of the respondents on 5-2-92 when the statements were allegedly complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naments. From the supplementary affidavit filed by the Customs Authorities it is evident that the Customs Authorities made enquiries at Vijaywada in respect of the names of the persons disclosed by the respondents in their affidavits as the persons from whom they obtained order for manufacturing Bengali designed gold ornaments. The telephonic message sent by the Customs Authorities from here as well as the fax and the reply sent by the Customs Authorities from Vijaywada clearly reveal that enquiries were made at Vijaywada and it was found that all the names and addresses given by the respondents in their affidavits were found to be correct and only address of one Mohammad Akbar of Satpalli, Krishna District, could not be verified due to incomplete address. The enquiries made by Assistant Collector of Customs, Vijaywada reveal that respondent no. 1 is working in the workshop of Shri Putta Markandeyulu, a goldsmith for the last four years and he has valid certificate for such work. Shri Putta Markandeyulu also affirmed an affidavit stating that he is maintaining a goldsmith workshop for the last five years at Vijaywada with central excise licence no. 207/87 dated 22-12-87 and respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dul Munaf came to Calcutta on 2nd February, 1992. The incident as alleged took place at about 8.15 P.M. on 5-2-92 and it is thus clear that respondent No. 2 was at Calcutta for at least three days prior to alleged incident. In such a situation availability or purchasing of Hindi newspaper by him cannot be ruled out. Moreover, the appellant s case is that they were coming from goldsmith shop after melting the gold which they brought from Vijaywada on the basis of orders of customers and, if from said shop the gold lumps were wrapped with Hindi newspaper it cannot be inferred that the story introduced by the respondents were false and the story introduced by the appellant were true. 30. The persons from Vijaywada who affirmed affidavits for the respondents clearly stated in their affidavits that they gave gold ornaments to the respondents for manufacturing Bengali designed gold ornaments and during bail application names of the persons who affirmed affidavits were disclosed and the affidavits were also produced before the concerned Court. Thereafter, by the order of the Court enquiries were made at Vijaywada relating to genuineness of names and addresses of the persons who affirmed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted, there was no other independent evidence to corroborate the same. The Tribunal was right in expressing doubt over the manner in which the alleged statements of respondents were recorded. The Tribunal made no mistake by observing that it is a well-settled proposition of law that confessional statements need independent corroboration and in the instant case, the voluntary character of the statements themselves being in doubt, the same cannot be the basis of holding the guilt against the appellants. The Tribunal also noticed that the purity of the gold is ranging between 96% to 71%. We agree with the views of Tribunal that it is an established law that circumstantial evidence must be compatible with the guilt of the accused. The Tribunal was correct in coming to conclusion that the evidence on record does not conclusively establish the culpability of the appellants herein and accordingly it rightly held that, We do not find any legal or cogent reasons to uphold the charges against the appellants in the absence of any independent corroborative evidence. 34. The Tribunal rightly set aside the impugned orders and allowed the appeals filed by the appellants i.e. the present respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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