TaxTMI 
TaxTMI 
2015 (9) TMI 1314
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....ers of Customs intercepted two persons Shri Vishnubhai Ishwardas Patel and Shri Madhusudan Jayantilal Raval of M/s Vishnu Ambalal, Angadia at Ahmedabad Railway Station, on the basis of specific information when they were about to board the train for Mumbai. That 115 foreign marked Gold biscuits were recovered from eight packets carried by the said two persons. That out of total foreign marked gold biscuits, 40 TT gold bars of PAMP SUISEE markings were found to be accompanied by a paper on which M/s Sreya Traders/M/s Krupa Traders M/s Krupa Ornaments was written. Statement of the intercepted person, who was an employee of M/s Vishnubhai Ambalal & Co, was recorded to the effect that the said parcel was collected by him from M/s Krupa Ornaments. Statement of Shri Pragnesh R. Choksi was recorded on 09.04.1999 in which he denied the ownership of the 40 TT Bars of PAMP SUISEE Mark but stated that all the transactions of his firm were being carried out by one Shri Dilipbhai P. Vyas of M/s Krupa Ornaments and his elder brother Shri Deepakbhai P. Vyas of M/s Krupa Traders. That Shri Pragnesh R. Choksi also stated that the paper under his firms name, in which the gold bars were wrapped, was ....
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....ly accounted for in the registers and Appellant has discharged the burden of proof under Section 123 of the Customs Act, 1962:- i) S.K. Chairs Vs CC (Prev.) Mumbai [2001 (127) ELT 415 (Tri-Mum)] ii) CC (P) W.B. Vs Golak Chandra Kamila[2006 (205) ELT 665 (Tri-Cal.)] iii) Rasilaben H. Rathod Vs CC Ahmedabad [2008 (226) ELT 641 (Tri-Ahmd)] 3. Shri Govind Jha (A.R.) appearing on behalf of the Revenue argued that Appellant in the very first statement did not claim the ownership of the seized gold bars. That as per Apex Courts order in the case of Surjeet Singh Chhabra Vs UOI [1997 (89) ELT 646 (S.C.)] to argue that confession given is an admissible evidence. Learned A.R. made the Bench go through Para 3 of this case law. He also relied upon the following case laws of Apex Court to argue that an admission made by the Appellant need not be proved as there is no claim of first statement being recorded under coercion or duress:- i)CCE Madras Vs Systems & Components Pvt. Ltd[2004 (165) ELT 136 (S.C.)] ii) CCE Mumbai Vs M/s Kalvert Foods India Pvt. Ltd[2001-TIOL-76-SC-CX] That Adjudicating authority has given detailed reasons in Pages 3....
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....adia. Shri Mukesh Mangaldas Panchal, Employee of M/s Shreya Traders vide statement dt.18.06.1999 confirmed to be the creator of paper on which name and address of M/s Shreya Traders was printed, as per the instructions of Shri Pragnesh and that he signed as Pragnesh on behalf of Shri Pragneshbhai. It is observed from the case records that on 12.04.1999, Appellant claimed the ownership of the seized goods and also filed anticipatory bail application before Court of City & Sessions Judge, Ahmedabad. It is the case of Revenue that the retraction made by the Appellant is not acceptable in view of Apex Courts case law in the case of Surjeet Singh Chhabra Vs UOI (supra). It is observed from Para 3 of this case law that Hon'ble Apex Court has denied the request of cross-examination of Panch witness by the petitioner when it was a case of import of gold through baggage. It was only a passing reference that Supreme Court made that confession though retracted is an admission. However, in view of Supreme Courts judgment in the case of Vinod Solanki Vs UOI (supra), it has been specifically ruled that evidence brought out by confession if retracted must be corroborated by other independent and ....
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....for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. 35. In the instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by t....
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....llahabad Bank, S.P. Nagar, Ahmedabad, which were received by the authorised person of M/s Amrapali Industries Ltd. As per the cross-examination dt.16.06.2000 of Shri S.T. Gurusahani, Superintendent, it has come on record that Bank has sold the gold bars to M/s Amrapali Industries Ltd. The source of the seized gold biscuits has been traced out to a genuine purchase from an authorised Bank. The same has also been accounted for in the records maintained by M/s Amrapali Industries Ltd. Under the existing factual matrix, it cannot be said that Appellant has failed to explain the licit acquisition of seized gold bars, when he was regularly buying such gold bars from M/s Amrapali Industries Ltd in the past. 7.1 In the case of S.K. Chains Vs CC(P) Mumbai [2001 (127) ELT 415 (Tri-Mum)], CESTAT Mumbai held in Para 10 as follows:- 10. Shri Kothari also claimed to have purchased 85 gold biscuits on 17-10-97 from one Bhulchandani for which payment was made by 3 cheques. The Show Cause Notice makes the claim that these cheques were not debited in the account of the appellants. Shri Nankani submits that at that time also one cheque was realised and later the total realisation wa....