TaxTMI 
TaxTMI 
2010 (3) TMI 564
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.... origin were recovered from the said vessel and were seized under Customs Act, 1962. The crank shaft, anchor and other attachments of the vessel were seized and taken into custody. The vessel being broken into pieces was not seized. As per evaluation on 29-30-7-91 by different witnesses the 286 silver bricks were weighed & found to be 9337.505 Kgs. and value of all the seizures was ascertained to be Rs. 6,61,93,585/-. The sample of silver bricks was assayed by Govt. of India Mint Mumbai and found to be of 999.5 to 999.7 purity. 2. In the meantime, the sub-Inspector of Police Shrivardhan, Dist : Raigad under letter dated 27-7-91, forwarded certain documents including Regn. Certificate of the vessel, customs clearance certificate issued to the vessel by Director of Customs UAE, General Export Manifest issued by Director of Customs UAE, identity cards of crews of the vessel etc. to the Supdt. Customs Dapoli. These documents were said to be found by a person in a bag on 25-7-91 on the sea shore of Shrivardhan, Dist : Raigad. 3. Further, investigations on the basis of these documents revealed that the name of the vessel was AL-AZHAR and was registered at Sharjah in UAE and had lef....
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....elas, Tal. Mandangad. A show cause notice was issued to the appellant on 7-1-1992. Appellant submitted his reply through Supdt. of Special Prison, Ratnagiri and denied this charges leveled against him. He was informed through advocate the order of confiscation of silver, which was passed in December 1997 Shri S.G. Narang, Commissioner of Customs (Preventing), Puna. While issuing show cause notice, department attached annexure stating description of property, which is attached by the department and also attached annexure no. 3 regarding list of documents/statement relied upon. The appellant and other crewmembers when replied to the show cause notice, they denied the knowledge of Hindi and English language and also denied to have committed any offence under the Customs Act or under any other Act. In this respect, the silver was seized in abandon condition in wrecked vessel. The condition of vessel was not sea worthy. It was damaged and its engine was out of order. According to the appellant, when the vessel was in the high sea, its engine went out of order. It was rainy season and it reached to the shore by the force of wind. After the seizer of silver, department star....
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....ating that silver was in the vessel). (5) General export manifest and Omar Adam was shipper consignee (name of vessel was AL-AZER description of cargo was silver. Department had relied on said documents along with letter of P.S.I. Shriwardhan (copies are attached with list.) This fact shows that the journey of vessel Al-Azer was official one. The vessel officially left Faruja Fort for Singapore and Omar Adam Shipper Consignee. The above said documents were supposed to be in the custody of captain of the vessel, but because of natural calamity, appellant could not carry the said document and produce before the Customs authority, but due to the distress condition of the vessel appellant lost the documents he could not produce the said documents immediately, but department received them subsequently. As per the provision of Customs Act Sections 29 & 30 the reporting of arrival of vessel is to be informed to the Custom authority with the documents. But in this case, department came in possession of said documents through P.S.I. Shriwardhan. Considering the provision of Customs Act the Captain or Tandel must show that his journey is ....
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....he said statement must be free from doubt and statement must be voluntary. This must not be subject of- (1) Misrepresentation or obtain by fraud or force and must not be subject to physical or mental torture. In this case the appellant and others were in custody of department or arrested on 2/8 and they were produced before the court on 8/8. So this statement cannot be said to be voluntary. (2) Similarly, those statements are not recorded in a language known to the appellant. (3) And proper procedure under Sec. 108 of Customs Act is not followed by the concerned officer that can be seen from their cross-examination. (4) There is no evidence in what language officer asked question to the appellant and who translated the reply of appellant. Similarly, the alleged statements were not record in the language known to the appellant as observation was made by the Commissioner in order under Appeal ( ). If the appellant was knowing Hindi language and officer was also knowing Hindi. Then why the officer h....
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....t is true and trust worthy. If the above observations are perused it can be seen that the order under appeal is against established legal position. The same view has been expressed in- 1956 AIR S.C. page 56 Mathu v. State of Uttar Pradesh (1) Confessional statement of the co-accused not evidence. (2) Prolong custody prior to recording contention/statement. The seizer effected on 24/25/26 July 1991 is of an abandoned goods or unclaimed goods but the appellant has claimed goods after the show cause notice issued. Department claims it unclaimed goods. Therefore, burden on the department to discharge that the evasion of duty has taken place, but appellants claims the said goods and he further submits that the said consignment was made for Singapore. The part of distinction is Singapore. The port of destination is Singapore. Therefore, question of duty will not raised. Present seizer is because of accident therefore question of duty or evasion of duty will not arise if appellant had tried to remove the goods without intimation to department or without payment of duty then he will hav....
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....m it was submitted that since the engine became out of order and because of bad weather vessel was not sea worthy, it reached the shore by the force of wind and crashed. He relies upon the registration certificate declaration filed before UAE Customs in support of his contention that the vessel was carrying legitimate cargo and the cargo should be released to him so that it can be delivered to the customers in Pakistan to whom they were supposed to be delivered. Further, he also submits that there is no evidence to show that the vessel was fired upon and while escaping from the coast guard vessel, the vessel crash landed is not correct. He submits that no evidence has been produced to show in the form of log book maintained by the firing authority, the timing of the firing etc. Therefore if the departments were to produce evidence relating to firing, it would show that his contention that there was no fire and the vessel crash landed because of bad weather would be established. Further, he also submits that the police inspector immediately after seizure handed over documents such as vessel registration certificate, sea-men cards of the crew members, customs clearance certificate sh....