TaxTMI 
TaxTMI 
2010 (5) TMI 493
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....e Tax Appellate Tribunal, East Zonal Branch, Kolkatta, in Appeal No. CSM-139, 140/2005, whereby the two appeals preferred by the respondents herein have been allowed, the order of adjudication and confiscation of the gold bars of foreign origin recovered from the possession of one Krishna Kumar, acting as a carrier of Devki Nandan Prasad @ Darki Nandan Prasad (respondent in M.A. No. 630 of 2007), has been set aside. 3. A brief statement of facts essential for disposal of the appeals may be indicated. On 22-9-1994, the appellants had received intelligence report that the respondents were engaged in smuggling of gold bars of foreign origin from across Indo-Nepal border. The aforesaid suspected person, namely, Krishna Kumar, was interc....
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....heir separate appeals which have been rejected by the learned Commissioner (Appeals). Customs & Central Excise, by a common order dated 23-9-2005 (Annexure-7). They preferred separate appeals before the learned Tribunal, which have been allowed by a common order and impugned herein. Hence these two appeals by the Department. 4. While assailing the validity of the impugned order, learned counsel for the appellants submits that the learned Tribunal has grievously erred in setting aside the order of adjudication, and the appellate order. His submission is that the learned Tribunal has completely failed to appreciate the sweep of Sections 107 and 108 of the Act. He relies on the following two judgments of the Supreme Court : (i) ....
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....ng the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India decided by a two-Judge Bench to which one of us, K. Ramaswamy J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediator) witnesses for cross-examination contending that reliance on the statements of those witnesses w....
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....nce in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator's report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve." It is evident on the authoritative pronouncements of the Supreme Court that the confessional statements in terms of Section 108 of the Act is substantive evidence, and can be relied upon to pass orders of confiscation and penalty under the provisions of the Act. 7. The only....
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....terms of Section 107 and Section 108 were pure and genuine confessional statements implicating himself, as well as the two respondents herein. The same is substantive evidence and can be used against Krishna Kumar as well as the two respondents herein. 8. The authorities had issued notices to the two respondents herein to record their statements in terms of Section 108 of the Act which they failed to avail of. We have thus no doubt that the confessional statements of Krishna Kumar in terms of Sections 107 and 108 of the Act are substantive evidence, supported by Panchnama as well as the seizure memo, that they are guilty of smuggling gold bars from across the border. Therefore, these cases are covered by the provisions of Section 12....
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....espondents. That was also an identical case where the respondent therein was secreting gold bars within his rectum. We had dismissed the appeal on the ground that it called for the rigorous procedure of X-ray of the body in terms of Section 103 of the Act. Learned counsel for the respondents has failed to notice the distinguishing feature between that case and the present ones. We have clearly observed in paragraph 4 of that order that "...We are not satisfied that there was an effective admission by the noticee..." That makes the whole difference in approach and applicability of the relevant provisions of the Act in two cases. That was a case where the provisions of Section 103 were attracted. On the other hand, in the present case, in vie....