Customs, Excise and Gold Tribunal - Tamil Nadu
Sri Nunna Satyanarayana vs Commissioner Of Customs, Hyderabad on 20 June, 2001
Equivalent citations: 2001(133)ELT679(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from order in Appeal No. 7/94 (G) Cus. dt. 29.4.94 by which the Commissioner has confirmed the absolute confiscation of foreign mark Gold Biscuit totally weighing 466.600 gms. valued at Rs.2,00,000/- from one Shri Kunala Seetaiah, son of Shri Peda Veeraraju on 14.8.92 on reasonable belief that the said seized goods were illicitly imported. At the time of recording statement the appellant had stated 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 17.8.92 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 has 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 appellant has concocted the story and produced false affidavits and forged receipt.
2. Appearing on behalf of the Appellants, the ld. Counsel Shri K.R. Natarajan, submits that the Appellant was in custody and his statement recorded was not voluntary. At the time of recording the statement he had clearly told the officers that the duty paying receipt was available but they had not recorded the same. This submission is recorded by the Commissioner in para 4 of the order but he did not accept the retraction including the evidence and confirmed the order in original. The Ld. Counsel submits that it is now well settled that even a witness retracts from recorded statement then the authorities have to rely on the other circumstantial and documentary evidence produced and decide the case with an open mind. He submits that the order is a biased one and without taking into consideration the retraction and documents produced therefore it has to be taken as a on non speaking order and the matter be remanded for de novo consideration with, a direction to discard the retracted statement and take into consideration the documentary evidence.
3. Appearing on behalf of the Revenue Shri S. Kannan, Ld. DR strongly and vehemently opposed the prayer. He drew my attention to the order in original and order in Appeal, wherein the entire facts have been discussed and shown that at the time of recording statement the appellant had voluntarily given his admission that he did not possess any baggage 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 is not giving credence to the retracted statements and the evidence on record. He has taken all the facts and circumstances of the case and rejected the plea and the order is correct.
4. While countering the argument, the Ld. Counsel pointed out that the retraction was immediate and import of gold was licit and had valid records duty paying receipts. He submits that retraction made was well within the time and it cannot be said that the appellant delayed in his retraction. He submits that once a non resident brings gold biscuits it can be sold to any person and there is no restriction in sale. Therefore, when a Tamil Nadu non-resident had sold the gold biscuits to the appellants, there is no restriction in such transaction and it is legal. Therefore he submits that the reasoning given by the Commissioner is not sustainable and said to be a judicious one. He relies on the final order No. 569 & 570/99 dt. 16.3.99 passed by this Bench by the then Hon'ble Member (Technical), V.K. Asthana, wherein he had noted large number of decisions and in a similar matters allowed the appeals by directing the seized gold to be returned to the appellants.
5. The Ld. DR submits that this judgement is distinguishable on the facts and cannot be made applicable to the present case.
6. On a careful consideration of the submissions made by both side, I notice that the Commissioner has not taken into consideration the fact of retraction made by the appellants while still in judicial custody. The appellants 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 appellants. However, its effect is nullified by its immediate retraction. The Commissioner has failed also to notice that the appellant retracted from the statement while still under custody therefore it cannot be said that the appellants could have concocted and fabricated evidence by producing two independent deponents. The fact that they are from Tamil Nadu is not a ground for rejection as business transactions can take place between persons belong to any region. Similarly findings recorded that the appellants are from Andhra Pradesh and hence credence cannot be given to the transaction as per law. As there is freedom granted to all citizens for carrying on business in any part of the country in terms of the fundamental rights guaranteed under the Constitution of India. Therefore, such observation has to be made. The Commissioner had appreciated the fact and findings does not have the watch and credibility and such facts cannot be discarded. Therefore, I find that the rejection of evidence is not sound reasons and cannot be said to be in terms of law. For that reason I set aside the impugned order and remand the matter to the original authority for de novo consideration. The original authority shall grant full opportunity to the appellant to establish that he has not in possession of licitly purchased gold biscuits and also was in possession of duty paying documents. The original authority shall not be influenced by the fact that the deponents are from Tamil Nadu and seller is from Andhra Pradesh. The original authority shall also take into consideration the final order No. 569 and 570 dt. 16.3.99 passed by the bench in the case of Ghewar Chand and others vs. CC and various other cited judgements while passing the fresh order. The appellants shall be given full opportunity to present their case. At this state the Ld. Counsel submits that this is an old matter and the seizure was done in 1992. Therefore, a direction will be given to the authorities to dispose of the matter within a time frame. Heard Ld.DR. As, can be seen from the record, this pertains to 14.8.92, and much time has lapsed, therefore the prayer made is justified. The original authority shall dispose of the appeal within a specific time frame of 5 months from the receipt of this order.
(order dictated and pronounced in the open court)