TaxTMI 
TaxTMI 
2006 (4) TMI 177
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.... the impugned order. The questions of law raised by the appellant are set out below: "(i) Whether or not authenticity, genuineness and voluntary nature of confessional statement recorded immediately after seizure under Section 108 of the Customs Act, can be questioned especially when the respondents at a later date categorically certified these statements to be correct and true? (ii) Whether belated retraction of confessional statements has any legal validity/acceptability or not? (iii) Whether in quasi-judicial proceedings an offence is to be proved with mathematical precision or preponderance of probabilities is sufficient?" 3. Besides that, the appellant has raised another question of law before this Court which runs as follows : "Whether the burden of proof under Section 123 of the Customs Act, 1962 was shifted to the Customs Authorities in the present case?" 4. Before entering into the merit of the appeal and the questions of law that has been raised by the appellant in this appeal, it would be profitable for us to mention facts of the case which run as follows: On the basis of an information, the respondents were intercepted by the Officers of the Customs (Preventi....
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....fore the Commissioner (Appeals) and the Commissioner (Appeals) by a common order dated 28-2-94 upheld the order passed by the Deputy Commissioner of Customs. The respondents being dissatisfied with the order of the Commissioner (Appeals) preferred separate appeals before the Central Excise Gold (Control) Appellate Tribunal that is, the Tribunal. The Tribunal set aside the order of Commissioner of Customs (Appeals) and allowed the appeals filed by the respondents with consequential relief by a common order dated 10-1-97 [2003 (161) E.L.T. 1016 (Tri.-Kolkata)]. 10. Against the order of the Tribunal dated 10-1-97, the appellant as petitioner filed an application under Section 130(1) of the Customs Act before the Tribunal for referring the questions of law to this Court which was rejected by the Tribunal by its order dated 28th April, 1997. The questions which the appellant placed before the Tribunal for reference to this Court have already been quoted earlier. 11. Accordingly, by filing the present appeal under Section 130(3) of the Customs Act, the Revenue, i.e., Customs (Preventive) has urged this Court as to why the Tribunal should not be directed to refer the questions of law as....
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....of the statement entered note as 5-2-92/6-2-92. Not only that, when the respondents were detained in jail, they made a statement subsequently and affirmed their statement made earlier on 5-2-92. It appears that the gold lumps which were recovered from their possession were still hot and those were melted mixed with alloy. The gold were melted from foreign made gold bars and biscuits and alloy was mixed with the gold and that is why the gold which were recovered from the possession of the respondents were found in melted condition. 14. Mr. Roychowdhury further submitted that after being released on bail the respondents retracted from their confessional statement. The law is well-settled that a retracted confession cannot be totally rejected unless it is established that the original statement alleged to be confessional statement was obtained under threat or coercion. Mr. Roychowdhury submitted that the Court is not bound to ask for corroboratory evidence, if the explanation given by the accused or the allegation relating to threat and coercion does not appear to be true and believable. Mr. Roychowdhury also submitted that the statement of a co-accused can be used as a substantive e....
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....ention he cited the decision in Union of India & Ors. v. Rajendra Prabhu & Anr. reported in 2001 (129) E.L.T. 286 (S.C.) = (2001) 4 SCC 472. 16. On the contrary, Mr. Ashoke Gupta, the learned advocate for the respondents submitted that the Tribunal rightly rejected the reference in the instant case as there was no sufficient question of law involved in the instant matter for referring the questions of law to this Court under Section 130(1) of the Customs Act. Mr. Gupta submitted that the respondents came from Vijaywada in Andhra Pradesh to Calcutta for manufacturing some Bengali designed gold ornaments according to the orders of customers. After they were enlarged on bail, the respondents disclosed names of certain persons who authorised them for preparation of Bengali designed ornaments. The authorities made enquiries at Vijaywada and found that all the names and addresses supplied by the respondents were genuine and correct and only one person could not be properly questioned as his address was incomplete. During the enquiries made at Vijaywada, it was revealed that the respondents were working as goldsmith under gold merchants. The respondents do not hail from wealthy family an....
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....at percentage of gold was only 81% and it clearly proves that the seized gold were not of foreign origin. If it was melted from foreign made gold bar or foreign made gold biscuit the percentage of gold would have been 99% and not 81% as was found on the basis of chemical examination report. 19. Mr. Gupta further contended that in this case no reliance can be placed on such alleged statement recorded under Section 108 of the Customs Act. Moreover, the said statements were not voluntary statement and it was also not recorded in the Telegu language with which the respondents are well conversant and the respondents were not fluent in English or in Hindi. The statement of one respondent cannot be used against the other as there was no inculpatory part involving himself into the alleged allegation of smuggling gold into India along with the other respondent. After release on bail they disclosed under which circumstances their statements were obtained by the Customs Officers forcibly under threat and coercion. In the instant case the Customs Authorities failed to discharge their initial burden of proof that the gold recovered from the respondents were of foreign origin and were smuggled ....
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....ed decisions over this point. We agree with the views of Mr. Roychowdhury that the Customs Officers are not Police Officers and the statements recorded under Section 108 of the Customs Act can be regarded as confessional statements provided it was made voluntarily. It is also admitted that the statements recorded under Section 108 of the Customs Act made voluntarily by the person concerned is admissible in evidence. 21. There were conflicting decisions as to whether before recording a statement under Section 108 of the Customs Act caution or warning is required like recording of a confessional statement by a Magistrate in a criminal proceeding under Section 164 of the Code of Criminal Procedure. Some of the High Courts were of view that even at the time of recording statement under Section 108 of the Customs Act, it was duty of the Customs Officers or Central Excise Officers to administer caution or mandatory warning embodied in Section 164(2) of the Code of Criminal Procedure. All the controversies were set at rest by the Supreme Court in Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Limited reported in 2000 (120) E.L.T. 280 (S.C.) = AIR 2000 SC 2901....
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....n 108 of the Customs Act were not voluntary. 23. After going through the materials on record and perusing the order of the Deputy Collector of Customs confiscating the articles and imposing personal penalty of Rs. 50,000/- each on both the respondents, the order of Commissioner (Appeals) dated 28-2-94 rejecting the appeals preferred by the respondents and the order of the Tribunal dated 10-1-97 passed in Appeal No. C-94/94 and Appeal No. C-95/94 allowing the appeals preferred by the respondent and setting aside the order of the Commissioner (Appeals) and the impugned order of Tribunal dated 28-2-97, we are prima facie satisfied that the statements of the respondents recorded under Section 108 of the Customs Act were not voluntary. 24. It appears that on the statements, the signatures of the respondents do not appear to be normal and voluntary signatures of the respondents. Before the Tribunal it was pointed out on behalf of the respondents that at page 1 of the statements dated 5-2-92 one signature is appearing in the middle of the pages between the lines and the other at the end of the page of the statements. It further appears that the last page of the statements wherein last f....
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.... and circumstances that the statements under Section 108 of the Customs Act were not voluntary and as such no reliance can be placed on such statements recorded under Section 108 of the Customs Act. 26. The respondents' specific case is that they work as goldsmiths under gold merchants and they came to Calcutta from Vijaywada taking the order from some customers for preparation of Bengali designed gold ornaments. The Customs Authorities alleged that the gold seized from the respondents were melted from gold bars mixed with alloy to hoodwink the Customs authority and it was further case of the appellant authorities that the respondents obtained the gold bars from one Donger Singh. Surprisingly the Customs Authorities did not make any enquiry concerning Donger Singh of Cotton Street. If the respondents purchased gold bars or gold biscuits of foreign origin from Donger Singh which were smuggled into India, the respondents could have been taken before Donger Singh by the Customs Authorities for verification regarding the alleged statements of respondents that they purchased gold bars from Donger Singh. The absence of making any enquiry by the Customs Authorities from Donger Singh or f....
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....es when he received such orders and the amount of the gold supplied by such customers and the dates of return of such articles/ornaments after manufacturing to such customers. 29. If the factual matrix are very clear before the Court from which the Court is able to arrive at a conclusion, the question of relying on legal principles relating to statements under Section 108 of the Customs Act becomes less important in this case. In the instant matter after going through the entire facts and circumstances we are of opinion that the appellant could not prima facie make out its case. The theory that they were going to catch Madras Mail which was scheduled to depart Howrah Station at 8.40 P.M. is unbelievable. The case of the appellant is that respondents were intercepted at the crossing of Tarachand Dutta Street and Rabindra Sarani at about 8.20 P.M. no ticket was seized from the respondents and from the place of arrest the distance of Howarh Station was not so short that within 20 minutes after reaching Howarh Station they would be able to collect ticket from counter and would be able to catch train at 8.40 P.M. Another part of the appellant's case also becomes unbelievable when the s....
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....on the respondents in view of provisions of Section 108 of the Customs Act. If the statements were voluntary as alleged by the appellant made by the respondents on 5-2-92, why the appellants again would take a further statement from the respondents on 14-2-92 bringing them to Customs House from Presidency Jail and again on 27-2-92 would take another statement inside, the jail in presence of police and jail officer. It indicates that the alleged statement dated 5-2-92 were taken without serving summons and in order to remove the legal defect the appellant subsequently obtained further statements from the respondents using threat and coercion. 32. The Commissioner (Appeals) also observed that, "With regard to the point that no warning was administered in terms of Section 164 (2) of the Cr. P. C. this appears to be a fact. Similarly in the seizure list it was not recorded that at the time of interception, the lumps of gold were hot in touch. It also does not appear reasonable that statements were not recorded in the language known by the deponents. The spacings i.e. at the end of the statements put certain doubt as to whether the deponent's signature was obtained first or the writing....