9911796707
TMI Blog2000 (7) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal vide its Final Order No. A/458/94-NRB, dated 6-5-1994 in Appeal No. C/1036/93-NB reported in 1994 (72) E.L.T. 865. 5.The facts relating to the two appellants under consideration in the two appeals before us are as under : Shri Dinkar Khindria, a non-resident Indian (NRI) residing in Canada arrived in India on 13-4-1992 on a flight from Toronto at New Delhi IGI Air Port. He declared 3 Kgs. of gold in his possession and paid Customs duty thereon. According to the Department and as per the show cause notice dated 26-8-1992, during surveillance by Preventive Officers of Air Customs, they located one Dinesh Khindria, brother of Dinkar Khindria, roaming in the arrival hall of the Air Port at the time when the flight in which Dinkar Khindria had arrived at the airport and he was found to be having physical contact with Shri Dinkar Khindria near the baggage conveyor belt No. III at the arrival hall of the airport. When Shri Dinesh Khindria was about to leave the arrival hall, he was intercepted and questioned by Customs Officers. Shri Dinesh Khindria disclosed his identity as brother of Dinkar Khindria who had arrived from Toronto by Air India Flight 186 dated 13-4-1992 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old biscuits (one kg. each) for clearance and payment of duty on his behalf and that he had paid customs duty for three Kgs. of gold (1 Kg brought by him and 2 Kgs given to him by Shri Thakur); that out of the 3 Kgs. of gold brought by him he had already handed over 2 Kgs of gold to his brother in the arrival hall for taking it out without payment of duty; that Thakur had also given him foreign currency to the tune of Rs. 90,000 for payment of duty on his gold biscuits; that when he was going out of arrival hall the Customs Officers had stopped him near the exit gate and that on being questioned he had admitted to having handed over two gold biscuits to Dinesh Khindria and that he knew that the handing over of gold to someone with intent to evade customs duty was an offence and also declaring someone else's gold and paying duty thereto on behalf of that person was an offence; and that he was to hand over 2 Kgs. of gold to Shri Mohit Thakur after customs clearance and that he had brought the gold for making jewellery in India. Shri Mohit Thakur in his statement corroborated the statement given by Dinkar Khindria. 6.The appellants were issued a show cause notice alleging that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also recorded under physical torture as had been stated by them in their writ petitions. Even otherwise the statements given by co-accused could not be relied upon as has been held in various decisions of the Supreme Court [AIR 1964 SC 1184] in the case of Haricharn Kurmi v. State of Bihar and others. In view of the Notification dated 13-3-1992 issued by the RBI import of 5 Kgs. of gold was allowed subject to payment of Customs duty in foreign currency. The order of absolute confiscation of 2 Kgs. of gold was therefore not permissible. The imposition of penalty under such circumstances was also not sustainable in view of the Supreme Court decision in AIR 1966 SC 197. Inasmuch as the Collector had failed to give option to the appellant Shri Dinkar Khindria for redeeming the goods on payment of fine as provided in Section 125(1) of the Customs Act, the order of confiscation was liable to be set aside. Ld. Counsel also submitted that the case made out by the Department, namely, that Shri Dinesh Khindria had came in contact with appellant Shri Dinkar Khindria, at the baggage conveyor No. III at arrival hall was totally unbelievable in the sense that Customs arrival hall was a strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant dated 13-11-1992 along with supporting documents. The entire finding in the impugned order is based on the retracted statement of the appellant and his brother. Since Shri Dinkar Khindria had declared and paid duty on the gold imported by him, there was no question of Dinesh Khindria having possession of any gold. Ld. Counsel has placed reliance on the Supreme Court decision in 1999 (109) E.L.T. 41 (S.C.) = AIR 1979 SC 705 holding that confessional statements made under coercion cannot be taken as a basis for conviction. Reliance was also placed on the Bombay High Court judgment reported in 1990 (28) ECR 4 holding that any statement recorded by the Customs authorities after detention for interrogation and under coercion amounts to arrest and statements recorded under such circumstances have no evidenciary value in the eye of law. Further, the statement given by Shri Mohit Thakur cannot be relied upon or used against the appellant as Shri Mohit Thakur was a co-accused. Further, appellant Shri Dinesh Khindria had no concern with any gold imported by his brother or by Shri Mohit Thakur, therefore penal action under Section 112 is not attracted in his case. 10.Defending t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a view to taking it out without payment of duty. The allegation that the said two statements were obtained under torture and coercion is not supported by any material except the telegrams, letters etc. sent by the appellants after a period of one week and the telegrams and letters sent by their relations to various high dignitories. The statements themselves were detailed and in material particulars they find corroboration in the statements given by Shri Mohit Thakur. Therefore even assuming that the statements of the present appellants are retracted statements, having regard to the fact that these statements are corroborated by Shri Mohit Thakur, the retraction does not take away the credibility of original statements. We are therefore in agreement with the conclusion of the Collector in the impugned order. Further, the statements given by the appellants are also corroborated by the recovery of the gold from the possession of Dinesh Khindria. We also find no reason to disagree with the observation in the impugned order that it is not possible to extract statements under coercion or physical torture in a place like the arrival hall of I.G. International Airport. 12.As regards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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