TaxTMI 
TaxTMI 
2015 (2) TMI 263
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....e. M/s. Prakash Transport), for a set period, subject to hire charges payment. On 23.01.1998, at around 1 PM, a Maruti van numbered DL 6CB 5069 was intercepted at the Ring Road. An investigation found that the van carried bundles of cloth (6174.90 metres of silk fabrics of Chinese origin), which were valued at `38,94,304/-. No legal authorization of purchase could be traced. These goods were seized. The driver, one Ranjan Sarkar, and another person, one Sanjay Maheshwari, were found in the van. 3. After various enquiries, and recovery of other material, Sanjay Maheshwari recorded a voluntary statement under Section 108 of the Customs Act, stating that in August 1997, the appellant, (whom Sanjay Maheshwari referred to as RN Goenka) had contacted him over the phone, and offered him a reasonable margin on bulk sales of Chinese silk. Accordingly, a series of transactions ensued, and Shri Goenka delivered 9000 metres of Chinese silk to Sanjay Maheshwari; Sanjay Maheshwari was further due to pick up 11,000 metres from Prakash Transport, Kishan Ganj, but was unable to do so. The Prakash Transport godown was searched, but nothing was found. 4. On 27.1.1998, the Customs again searched the....
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....t obtained under duress. There was no medical evidence showing that fact, and the retraction itself was vague and unsubstantiated. Invoking the wellestablished principle that the burden of proving duress is upon the party alleging it, the Commissioner held that it could not be said that the confessional statement was extracted involuntarily, or that it lacked evidentiary value. 8. Following the Supreme Court decision in K.I. Pavunni vs Assistant Commissioner, 1997 (90) ELT 241 SC, the Commissioner held that since a customs officer was not a police officer, the maker of the confessional statement under Section 108 of the Customs Act was bound by it. In addition, the Commissioner found that the recovery of the silk goods had not been disputed, and was corroborated by the statement of G.D. Maheshwari, the father of Sanjay Maheshwari. The Commissioner then observed: "42.4.1. The argument (para 22(iv)-(vii)) that in view of the retraction of Shri. M.P. Goenka and Shri. Sanjay Maheshwari there is no independent evidence to establish the involvement of the two persons with the smuggled Chinese Silk is also wi....
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....er. Since these documents were resumed on the night of 23.1.98, there cannot be an argument that the same were manipulated. 42.4.5. Thus apart from the inculpatory statement of the co-noticee, there are sufficient corroborative statements and documentary evidence to establish that 11 bales or cloth were delivered from the godown hired by M/s. ATC to Monu Haldar, who had brought it to M/s. RIN. That these were Chinese silk is established from the Panch nama, the tags and labels recovered and statement of Shri. G.D. Maheshwari. The inculpatory statement of Conoticee establishes that 9000 meters had been delivered to him on 22nd morning, and that these bales were the balance quantity of Chinese silk to be sent by Goenka. It is a matter of record that Shri. M.P. Goenka has strong personal and business interests in Nepal and visits the country frequently, and it would certainly not be difficult to source such material from Nepal. 43.3. Coupled with the incriminating confessional statement of Sanjay Maheshwari, there can be no doubt that Shri. Goen....
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....anjay Maheswari." 10. The appellant argues that the order of the CESTAT is based completely upon his confessional statement, which is vitiated due to duress and coercion, and was subsequently retracted in court. The appellant relies upon the judgments of the Supreme Court in Vinod Solanki vs Union of India, 2008 (233) ELT 157 and Balwant Kaur vs Union Territory of Chandigarh, AIR 1998 SC 139 for the proposition that reliance upon a retracted confession, without any corroborating material, vitiates a finding of guilt. He also argues that the exoneration of the other accused in separate enquiry proceedings relating to the polyester goods signifies that the finding of the CESTAT that there was a "live link" between himself and the other accused, also cannot stand. It was secondly urged that a consideration of the cross-examination of Sanjay Maheshwari would reveal that there was nothing in his deposition to implicate the appellant of wrongdoing. 11. On a consideration of the cases cited by the appellant, we do not find them to be of relevance in the present case. In Vinod Solanki(supra), the case turned upon a retracted confession, that formed the basis of levying a penalty under th....
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....p; "The core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the aut....
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.... in 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." 15. Still later, in Gulam Hussain Shaikh Chougule vs S. Reynolds (2002) 1 SCC 155, the Supreme Court held: "The ban contained in section 25 of the Evidence Act is an absolute ban. But it must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non-police personnel." 16. The orders of the Commissioner (Preventive) and the CESTAT, in our opinion, are entirely in accordance with the law declared by the Supreme Court. Both the appellant and Sanjay Maheshwar....