2001 (6) TMI 104

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....ated that he did not possess any baggage receipt. The Commissioner (Appeals) relied on this portion of the statement and rejected his subsequent retraction given immediately on 17-8-1992 while still in their custody. He had produced the affidavits of two non-resident Indians to demonstrate that this gold was licitly imported. The appellant had averred that his statement had been recorded earlier under coercive and force. Therefore, retraction was required to have been accepted as it was done immediately while still in custody. However, this plea has been rejected including the evidence produced and the absolute confiscation has been confirmed besides the imposition of personal penalty of Rs. 20,000/- The Commissioner has concluded that the ....

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....ge receipt or evidence of import. Even when he was produced before the Magistrate, he did not state before the Court that he was in possession of licit import of gold biscuits, which were clearly foreign marked. Therefore, this retraction while judicial custody cannot be accepted. Therefore the rejection of his retraction is to be considered as a concocted story and the impugned order passed by the Commissioner (Appeals) is totally sustainable. He pointed out that the seizure was in Rajahmundry while the affidavit of the person said to be hailing from Tamil Nadu. Therefore, the Commissioner did not accept the pleas of the appellants which cannot be relied; that the Commissioner was justified in not giving credence to the retracted statement....

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....s had made the retraction at the earliest point of time, therefore, it cannot be said to be an after thought or a concocted story as held by the Commissioner (Appeals). The Commissioner has also failed to examine the deponents of the affidavit who had stated that they had brought the licit gold biscuits and paid duty thereon. The deponents of the affidavits affirmed about the sale made to the appellant of the seized gold biscuits. The appellant has given details of purchase from the said deponents. The Commissioner ought to have consider all these materials. The impugned order cannot be speaking order and has not been given with free and clear mind. The Commissioner is influenced with the initial statement of the admission made by the appel....