1991 (7) TMI 202 - AT - Customs

Appeals allowed, penalties overturned, appellants entitled to consequential reliefs.

DEBU SAHA Versus COLLECTOR OF CUSTOMS (PREVENTIVE)

The appeals were allowed, setting aside the imposition of the penalty of Rs. 50,000.00 each on the appellants and the confiscation of the VCR, ball-point ... Evidence - Confessional statement Issues Involved:1. Legality of the imposition of penalty under Section 112 of the Customs Act, 1962.2. Confiscation of the VCR under Sections 111(d), 111(p), and 111(o) of the Customs Act, 1962.3. Confiscation of ball-point pens and perfume.Detailed Analysis:1. Legality of the Imposition of Penalty under Section 112 of the Customs Act, 1962:The appellants challenged the imposition of a personal penalty of Rs. 50,000.00 each under Section 112 of the Customs Act, 1962. The facts revealed that on 15-5-1986, Customs Officers intercepted a lorry containing medicinal powder allegedly imported from Bangladesh. The three individuals in the lorry implicated the appellants, stating they acted under their direction.The appellants contended that the statement of one of the co-accused, Shri Gour Hari Saha, was not voluntary, alleging it was obtained under duress, supported by a medical report from the Jail Doctor. The Tribunal found this contention credible, noting the injuries corroborated by the medical certificate and the Magistrate's records. Consequently, the Tribunal ruled that this confession could not be considered voluntary and therefore could not be relied upon.The Tribunal further emphasized that the corroboration of the statements of co-accused must come from an independent source, as per the Supreme Court's rulings in AIR 1970 SC 45 and AIR 1964 SC 1184. Since the statements of the three co-accused were not independently corroborated, they could not be used to substantiate the charges against the appellants. Thus, the imposition of the penalty was deemed not in accordance with law.2. Confiscation of the VCR under Sections 111(d), 111(p), and 111(o) of the Customs Act, 1962:The VCR was confiscated under Sections 111(d) and 111(p) of the Customs Act, 1962. The appellants argued that the VCR was legally imported, supported by a baggage receipt and a certificate from the Superintendent of Customs, Calcutta Airport. The Tribunal found that the VCR matched the description in the certificate, confirming it was legally imported and duty-paid.The respondents contended that the VCR's mortgage violated the Baggage Rules, invoking Section 111(o) of the Customs Act, 1962. However, the Tribunal noted that Section 111(o) was not mentioned in the show cause notice, violating Section 124 of the Customs Act, 1962, which requires informing the owner of the grounds for confiscation. Since the appellants were not given an opportunity to respond to this charge, the Tribunal ruled that the confiscation under Section 111(o) could not be upheld.3. Confiscation of Ball-Point Pens and Perfume:The confiscation of ball-point pens and perfume was also challenged. The Tribunal found no evidence to show that these items were illicitly imported. Therefore, the confiscation of these items was not justified.Conclusion:The appeals were allowed, setting aside the imposition of the penalty of Rs. 50,000.00 each on the appellants and the confiscation of the VCR, ball-point pens, and perfume. The appellants were entitled to consequential reliefs.