TaxTMI 
TaxTMI 
2024 (2) TMI 378
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....f penalty confirmed against them are as under:- Sl.No. Appellant Appeal No. Quantum of Penalty 1. Rakesh Kumar C/70095/2022 5,00,000/- 2. Girish Chandra C/70094/2022 5,00,000/- 3. Pintu Verma @ Mukesh Verma C/70074/2022 25,00,000/- 4. Rinku Verma C/70076/2022 25,00,000/- 5. Deepu Verma C/70075/2022 25,00,000/- 2. The facts of the case, as detailed in the show cause notice dated 03.09.2019 are that on 30.03.2019, the Officers of Customs (P), Division Varanasi intercepted two persons namely Sri Rakesh Kumar and Sri Girish Chandra from the private parking of Cheoki Railway Station and recovered gold bar weighing 1.2 kg in two pieces from Sri Rakesh Kumar and one piece gold bar weighing 1 kg from Sri Girish Chandra. The show cause notice records that upon recovery of the said gold bars, the Government approved Valuer was called upon, who vide his report dated 30.03.2019 declared the weight of recovered 3 pieces of gold bars as 2201.430 grams valued at Rs 72,20,690/-. The show cause notice further records that on a reasonable belief that the recovered gold bars were of foreign origin and were smuggled through Bangladesh, the said bars were seized and complete pr....
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..../ADC/2020-21 dated 26.08.2020, by which the subject gold bars were confiscated and penalties under Section 112(b) was imposed on the five Appellants along with Shri Pradeep Ji of Kolkata. 2.6. The Order-in-Original dated 26.08.2020 was then challenged by the five Appellants in separate appeals only to the extent of imposition of penalties. None of the present Appellants claimed ownership of the confiscated gold bars. By the impugned order, all the five appeals have been dismissed and imposition of penalties on all the five Appellants has been upheld. 2.7. As far as Shri Pradeep Ji of Kolkata is concerned, it appears from the records that he has not challenged the Order-in-Original dated 26.08.2020, to the extent it relates to him and consequently there are only five appeals before us filed by the present Appellants. 3. Heard Shri Nishant Mishra, ld. Counsel appearing for Shri Rakesh Kumar and Shri Girish Chandra, Shri Kartikeya Narain ld. Counsel for the other three Appellants viz. the Verma Brothers and Shri Manish Raj, ld. A.R for the Revenue. 4. Shri Nishant Mishra, ld. Counsel has submitted that Shri Rakesh Kumar and Shri Girish Chandra are labourers and have been falsely i....
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....e appeal records. 7. On going through the records, we find that the entire case of the Revenue is based on the fact of recovery of confiscated gold bars from Shri Rakesh Kumar and Shri Girish Chandra as recorded in Panchnama dated 30.03.2019, confessional statements of Shri Rakesh Kumar and Shri Girish Chandra and the call record details of the present Appellants and one Shri Pradeep Ji of Kolkata. 8. While the Revenue has initiated the present proceedings against the Appellants on the basis of recovery of confiscated gold bars from Shri Rakesh Kumar and Shri Girish Chandra, both the said persons have disputed the said recovery. As per them, the subject gold bars were not recovered from them and they were falsely implicated in the matter. The two Appellants were therefore disputing the correctness of the Panchnama dated 30.03.2019. Law in this regard is well settled that Panchnama is merely a record of what the panch sees and the only use to which the panchnama can be put is that when the panchas go into the witness box, the panchnama can be used as a contemporary record to refresh his memory. Reference in this regard has been made by the Counsel for the Appellants to the judgmen....
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....anchnama and the recovery made from the two Appellants could have been established. In the present case, though the opportunity to cross-examine the two panch witnesses was allowed but the said panch witnesses never appeared for cross-examination. In this view of the matter, in our opinion, it would not be safe to conclude regarding recovery of confiscated gold bars from the two Appellants only on the basis of panchnama, without corroborating the contents of the same with some other evidences. 10. The Revenue has also relied on the confessional statements of the two Appellants, who admitted in their statements dated 30.03.2019 regarding recovery of gold bars from them and bringing the subject gold bars from Kolkata. In this regard, we find that as per the version of the Revenue, the two Appellants were apprehended from Allahabad (now Prayagraj) and were then taken to Varanasi where their respective statements were recorded at 10:00 PM and 10:30 PM respectively. However, the two Appellants, while they were in judicial custody, retracted their earlier statements stating that they were petty labourers and the subject gold bars had not been recovered from them. They further stated tha....
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....mpowered under Section 108 to record statement etc. has the onerous responsibility to see to it that the statement is recorded in a fair and judicious manner providing for procedural safeguards to the concerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice. It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards. Certainly a statement recorded under duress or coercion cannot be used against the person making the statement. It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers." Further, Hon'ble Supreme Court in the case of Rajesh and Another Vs. State of Madhya Pradesh [2023 SCC Online SC 1202] have held as under:- "29. That apart, the manner in which the Investigating Officer (PW-16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case. In Yakub Abdul Razak Memon vs. State of Maharashtra t....
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.... the concerned IO. (g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses. (h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued. 30......................................................................... 31. Recently, in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, a 3-Judge Bench of this Court observed that the requirement of law that needs to be fulfilled before accepting the evidence of discovery is by proving the contents of the panchnama and the Investigating Officer, in his deposition, is obliged in law to prove the contents of the panchnama. It was further observed that it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law that the prosecution would be justified in relying upon such evidence and the Trial Court may also accept the same. It was held that, in order to enable the Court to safely rely upon the evidence of the Investigating Officer, it is necessary that the exact words attributed to the accused, as the statement made by him, be brought o....