TaxTMI 
TaxTMI 
TaxTMI 
2013 (5) TMI 216
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.... both the authorities below." 2.1 Briefly stated the facts of the case are that on the basis of an information received by DRI Officers, Berhampore, a Vehicle bearing No. WB-57-4215 loaded with brass scrap was intercepted at Nalhati Check Post in the early hours of 19-9-2004 along with three persons, namely (i) Jainal Abedin, (ii) Sahab Ali Mondal & (iii) Adhirsta Bhoimali. On demand, the said persons could not produce any legal document showing its licit importation into India. Consequently, for detailed examination, the truck and cargo were brought to DRI Office at Berhampore and examined in the presence of two independent panchas. The brass metal scrap totally weighing at 3030 kgs and valued at Rs. 3,03,000/-, was later seized on the reasonable belief that the same were imported in contravention of provisions of Section 3(1) & 3(2) of Foreign Trade (Development & Regulation) Act, 1992 as amended under Section 110 of the Customs Act, 1962. The statements of the said three persons were also recorded on 19-9-2004. 2.2 In his statement, Shri Jainal Abedin has informed that on 18-9-2004 at about 10.00 pm, he started for Kolkata in a truck No. WB-57-4215 loaded with brass ....
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....e going to Kolkata after loading the illegal scraps (brass metal), some white clothed officers tried to stop the said truck but the driver got frightened and ran away with high speed and ultimately stopped at Nalhati Check Post. 2.5 In his statement dated 1-10-2004, Mr. Atarul Haque, informed that he along with other two persons, namely, Mr. Mantu Biswas and Mr. Latiff Shekh, are the owners/partners of the brass metal scrap/broken ships, which were seized with Truck No. WB-57-4215 on 19-9-2004. He has stated that they were due to give delivery of the said illicit goods at A.K. Steel compound near Maniktala Canal to one Mr. Rajkumar on the basis of a commission of Rs. 3000/-. He stated that there was no other owner of the said illicit goods. Further he stated that Mr. Ajijur Rahaman is not the owner of the illicit goods, but the three persons mentioned above including himself, are only the owners of the goods and should be treated as the real owner of the said goods. He has also submitted that the name of the Bangladeshi resident from whom the said illicit goods were taken for giving delivery at Kolkata on the said commission, is Asraful Shekh, resident of Bangladesh and his c....
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....e delivery of the said goods with the help of the said driver, Mr. Sahab Ali Mondal on the hiring charge of Rs. 1600/- to one Mr. Rajkumar of A.K. Steel Compound, beside Maniktala Canal. Further he stated that he has paid an advance of Rs. 1600/- to the driver and the said truck contained a quantity of 2000 kgs of brass and 2100 kgs of scraps, total 4100 kgs. and the said brass pipes are of very big sizes and copper plates are of round shapes. He mentioned that he has started the said business from April, 2004 and furnished some of the hawkers' name from whom he purchased the said goods. He has informed that he delivered approximately a quantity of 4400/4500 kgs of brass and copper scraps to Mr. Rajkumar, a resident of Kolkata and received payment of approximately of Rs. 4,50,000/-. He purchased the said scrap at the rate of Rs. 105/- to Rs. 112/- per kg from the said hawker and sold the same at the rate of Rs. 140/- to Rs. 150/- to Mr. Rajkumar. Further he stated that Mr. Jayanal Abedin was engaged as a labour for Rs. 300/- for delivery of the said goods in Truck No. WB-57-4215 to Rajkumar at Kolkata. Further he stated that the persons whose names were stated below, he knows only ....
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....ct, 1962. 4. Being aggrieved by the above, the appellant filed the appeal before the Commissioner (Appeals), who upheld the Order-in-Original passed by the lower authority. 5.1 Ld. Advocate for the appellant submitted that the statements of Mr. Jaynal Abedin, Mr. Saheb Ali Mondal and Mr. Adhirshta Bhoimali, were recorded on 19-9-2004 under pressure which is evident from the medical prescription enclosed at page 41 and 54 of the paper book filed before the Tribunal. He submitted that the medical prescription issued by the Medical Officer, Tegharia Hospital, would show that they had undergone serious torture during recording of their statements on 19-9-2004. Mr. Jaynal Abedin by an Affidavit shown on 27-9-2004, retracted his statement dated 19-9-2004. Mr. Saheb Ali Mondal also retracted his statement dated 19-9-2004 by affirming an Affidavit dated 6-10-2004. He further submitted that Mr. Atarul Haque, Mr. Montu Biswas, Md. Abdul Latiff by affirming Affidavits, also retracted their statements on 1-10-2004. All the said persons by their letter dated 5-10-2004 forwarded their Affidavits to the Commissioner of Customs, Kolkata through Assistant Commissioner of Customs, ....
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....ed to be owners in the statements recorded on 19-9-2004 by Jaynal Abedin, Saheb All Mondal and Adhirsta Bhoimali. Further, the ld. Advocate submitted that though others were named as owner of the impugned goods, but no evidences were produced by the said named persons as owner of the said scrap. On the contrary in their statements, it was said that the said scrap was to be delivered at a commission of Rs. 3000/- and the goods were procured from Bangladesh. The ld. Advocate said that all these statements cannot be relied upon as the same were duly retracted and there is no corroborative evidence in support of the said statements that the persons named are the owners. Further, he has submitted that the appellants had enclosed documents in support of his claim of ownership of the goods like, license issued by Gram Panchayat for carrying out the business as a scrap, challan, delivery challan of the said scrap, location of his shop etc. Therefore, the findings of the ld. Adjudicating Authority, which were upheld by the ld. Commissioner (Appeals) that the ownership of the goods could not be ascertained, is incorrect and bad in law. 6. Per contra, the ld. A.R. for the Revenue has su....
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....haman and Latiff Shaikh. Further, they have disclosed that when asked to stop their vehicle by the officer of Customs, the vehicle's speed was increased to fled away out of fear. These persons later retracted their statements on 27-9-2004 by filing proper affidavits before the Judicial Magistrate. In the retraction, Mr. Jaynal Abedin mentioned that he was beaten to such an extent that he got himself treated at Tegharia Hospital on 20-9-2004 and the statement made to DRI was not written by him voluntarily. All these retractions were submitted to the Department through the Assistant Commissioner of Customs, Krishnanagar, Nadia. The statements of Montu Biswas and Atarul Haque, were also recorded on 1-10-2004. In their statements, it was stated that he along with other two partners, namely, Atarul Haque and Latiff, was the owner of 3030 kgs of illicit brass and metal scrap broken ships. They have also retracted their statements subsequently. On 5th October, 2004, Montu Biswas in his retraction had given the detail account as to how the statement was forcibly recorded by one Shri Chinmoy Mitra, an officer of DRI. On careful analysis of these statements and retractions, it can be inferre....
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....n. Thus, the Court is required to find out whether there are other facts and circumstances on the record to corroborate what is stated in the retracted confession. As stated earlier, except for the statements of 1st and 2nd accused under Section 108 of the said Act of 1962, there is nothing on record to corroborate what is stated in the confessional statement of the 1st respondent. Thus, if at all any assurance is to be drawn or assurance is to be taken, the same will have to be on the basis of statements of 1st and 2nd accused under Section 108 of the said Act which have been retracted. Thus, in short, now the question which remains to be decided is whether retracted confessional statements of the co-accused who are not being tried with the accused can be used as corroborative evidence for drawing assurance to what is stated in the statement of the accused (1st respondent) under Section 108 of the said Act of 1962." 7.3 The Hon'ble Supreme Court in the case of Vinod Solanki (cited supra) on the said issue, had observed at Para 22 as follows : "22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corrobo....
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....oved, it must further be proved to be smuggled one without the payment of duty. In this case, even the first ingredient has not been established. If the Revenue is unable to disclose even the name of the foreign country where these goods are allegedly manufactured and at the same time, is unable to produce anybody who actually smuggled any part of the goods from Bangladesh and in the report on the result of the chemical examination, there is no indication that those are of foreign origin, the Tribunal did not commit any illegality in setting aside the order of confiscation, penalty etc. imposed by the Commissioner. The only reason for forming the alleged reasonable belief that those were smuggled ones was that those were brought from the District of Murshidabad and that there is no seaport near the said District. We find that such findings recorded by the Commissioner are based on mere conjecture." 7.6 I also find that this Tribunal in the case of Rasul Md. Sk. & Anwar Hossain (cited supra) following the said judgment of the Hon'ble Calcutta High Court in similar circumstances, has recorded its finding as under : "4. Admittedly the facts are that the metal scrap is not ....