Custom, Excise & Service Tax Tribunal
Shri Azizur Rahaman vs Commr. Of Customs (Prev.), Kolkata on 4 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Cus. Appeal No.295/07
Arising out of O/A No.Prev./Cus/132-138/2007 dated 13.9.2007 passed by the Commr. of Customs (Appeals), Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Shri Azizur Rahaman
APPELLANT(S)
VERSUS
Commr. of Customs (Prev.), Kolkata
RESPONDENT (S)
APPEARANCE Shri Arijit Chakraborty, Advocate for the Appellant (s) Shri S. Misra, Addl. Commr. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING : 04. 05. 2012 DATE OF PRONOUNCEMENT : 22. 06. 2012 ORDER NO..
Per Dr. D. M. Misra :
By an order dated 17th August, 2010 in Customs Appeal No. 8 of 2009, the Honble High Court of Calcutta, remanded the matter to this Tribunal by setting aside the earlier Order of this Tribunal bearing No.A-987/Kol/2008 dated 29.9.2008. The Honble High Court while remanding the matter, observed as follows :
Accordingly, the judgment and order of the Learned Tribunal is set aside. We direct the Learned Tribunal to decide the matter afresh taking into consideration of the statements made by various persons and as accepted by two authorities and also to consider whether the retraction made by these persons by swearing affidavit can be believed and/or accepted or not, since such plea of retraction was not accepted by both the authorities below.
2.1 Briefly stated the facts of the case are that on the basis of an information received by DRI Officers, Berhampore, a Vehicle bearing No.WB-57-4215 loaded with brass scrap was intercepted at Nalhati Check Post in the early hours of 19.09.2004 along with three persons, namely (i) Jainal Abedin, (ii) Sahab Ali Mondal & (iii) Adhirsta Bhoimali. On demand, the said persons could not produce any legal document showing its licit importation into India. Consequently, for detail examination, the truck and cargo were brought to DRI Office at Berhampore and examined in the presence of two independent panchas. The brass metal scrap totally weighing at 3030 kgs and valued at Rs.3,03,000/-, was later seized on the reasonable belief that the same were imported in contravention of provisions of Section 3 (1) & 3 (2) of Foreign Trade (Development & Regulation) Act, 1992 as amended under Section 110 of the Customs Act, 1962. The statements of the said three persons were also recorded on 19.9.04.
2.2 In his statement, Shri Jainal Abedin has informed that on 18.9.04 at about 10.00 pm, he started for Kolkata in a truck No.WB-57-4215 loaded with brass metal scrap of foreign ship. At the time of loading, the owners of the goods, i) Aaji Prodhan, (ii) Mantu Biswas, (iii) Ataur Rahman & (iv) Latib Shaikh, were present. They all supervised the entire loading of the illegal goods. Further he has stated that he was a truck driver and he started for Kolkata with a Khalasi. He further stated that after some time, few white clothed officers ordered them to stop the vehicle near the village Aradanga, but he and the driver, Saheb Ali got frightened and ran at a high speed and ultimately stopped at Nalhati Check Post. Further he has stated that he was offered Rs.300/- for accompanying the illegal goods by Aaji Prodhan.
2.3 Mr. Saheb Ali Mondal has stated that on 18.9.04 at about 10.00 pm, he was instructed by the owner of the truck No.WB-57-4215, Senjarul Shaikh for loading some scrap of about 3300 kgs. which was mainly broken brass metal/foreign ships and the loading was done by labourers who were unknown to him. He further stated that at the time of loading, the owner of the scrap (i) Aaji Prodhan, (ii) Mantu Biswas, (iii) Ataur Rahman & (iv) Latib Shaikh, were present and they all guided and supervised the entire loading of scrap of broken ship in truck No.WB-57-4215. He also stated that the white clothed officers intercepted and seized the truck No.WB-57-4215 at Nalhati Check Post. He also admitted that he had done the same business earlier twice and delivered it to Rajkumar, residence of Maniktala, Kolkata by the same truck. Further he has stated that though he knew that carrying these scraps of broken foreign ships is offence, he had to do it for Rs.500/- because of poverty.
2.4 Mr. Adhirsta Bhoimali, in his statement dated 19.9.04, informed that he had been working as Khalasi of the truck No.WB-57-4215 and the said truck had carried 3 tons twice earlier the scrap of broken ships from Bangladesh to Kolkata. It was loaded from village Mahaldarpara and unloaded at A. K. Steel Godown at Maniktala, Kolkata. Further he has stated that he took part in it and he did not know Raj Kumar Babu, Maniktola, Kolkata and owner of the scraps at Mahaldarpara. He has stated that the scraps were from Bangladesh and illegally entering into India is clearly known to him. He got Rs.600/- as Khalasi and Rs.30/- as daily meal from the owner. He has further informed that on 18.9.2004 at night when they were going to Kolkata after loading the illegal scraps (brass metal), some white clothed officers tried to stop the said truck but the driver got frightened and ran away with high speed and ultimately stopped at Nalhati Check Post.
2.5 In his statement dated 1.10.2004, Mr. Atarul Haque, informed that he along with other two persons, namely, Mr. Mantu Biswas and Mr. Latiff Shekh, are the owners/partners of the brass metal scrap/broken ships, which were seized with Truck No.WB-57-4215 on 19.9.2004. He has stated that they were due to give delivery of the said illicit goods at A. K.Steel compound near Maniktala Canal to one Mr.Rajkumar on the basis of a commission of Rs.3000/-. He stated that there was no other owner of the said illicit goods. Further he stated that Mr. Ajijur Rahaman is not the owner of the illicit goods, but the three persons mentioned above including himself, are only the owners of the goods and should be treated as the real owner of the said goods. He has also submitted that the name of the Bangladeshi Resident from whom the said illicit goods were taken for giving delivery at Kolkata on the said commission, is Asraful Shekh, resident of Bangladesh and his correct or exact address in Bangladesh is not known to them, who came crossing the Border to Mahaldar Para off and on and he does not stay in India, whom he can indentify on his personal appearance. Further he stated that he had never gone to Bangladesh and he had no Passport and they have started the said work as a commission agent on account of financial hardship and poor condition.
2.6 Mr. Mantu Biswas had informed that there were three partners/owners of 3030 kgs of illicit brass and metal scrap of broken ship. The names of the other two parters are (i) Atarul Shekh and (ii) Latiff Shekh. He stated that they were to deliver the illicit brass and metal scrap broken ships to a Kolkata Resident named as Rajkumar at A.K.Steel compound besides the Maniktala Canal on a commission basis of Rs.3000/-. There was no other owners of the said goods. Before this, only once on the commission of Rs.3000/-, he transported and delivered the foreign ships-broken in that truk to Rajkumars above mentioned address. He stated that he does not know anybody Ajijur Rahaman and said Ajijur Rahaman is not the owner of those goods. The name of the person from whom the said goods were taken for delivery at Kolkata on a commission basis is Asraful Rahaman, a resident of Bangladesh, but the exact address of the Bangladeshi resident, is not known to him. He stated that the said Bangladeshi resident is in the practice of coming to Mahaldar Para off and on, crossing the border, whom he can identify He stated that they had only done the said work on commission basis due to financial hardships and family poor condition.
2.7 In his statement dated 8.10.2004, Mr. Ajijur Rahaman had stated that he is the owner of Biswas Hardware and there is also a shop of metal scrap in his name and there is a provisional trade licence Sl.No.320 dated 20.5.2004 for the said shop of broken metal scraps issued by Gram Panchayat of Sammatinagar. He stated that he used to buy and sell different scraps of brass, iron, glass, tins through different hawkers of the locality and the said godown of metal scraps of brass goods etc. covers the area of approximately 12 ft X 15 ft. Further he stated that he is the owner of the foreign ships broken parts that were recovered from Truck No.WB-57-4215 and seized on 19.9.2004. He has stated that on 18.9.2004 at about 7.00 hours in the evening, he was to give delivery of the said goods with the help of the said driver, Mr. Sahab Ali Mondal on the hiring charge of Rs.1600/- to one Mr.Rajkumar of A. K. Steel Compound, beside Maniktala Canal. Further he stated that he has paid an advance of Rs.1600/- to the driver and the said truck contained a quantity of 2000 kgs of brass and 2100 kgs of scraps, total 4100 kgs. and the said brass pipes are of very big sizes and copper plates are of round shapes. He mentioned that he has started the said business from April, 2004 and furnished some of the hawkers name from whom he purchased the said goods. He has informed that he delivered approximately a quantity of 4400/4500 kgs of brass and copper scraps to Mr.Rajkumar, a resident of Kolkata and received payment of approximately of Rs.4,50,000/-. He purchased the said scrap at the rate of Rs.105/- to Rs.112/- per kg from the said hawker and sold the same at the rate of Rs.140/- to Rs.150/- to Mr. Rajkumar. Further he stated that Mr. Jayanal Abedin was engaged as a labour for Rs.300/- for delivery of the said goods in Truck No.WB-57-4215 to Rajkumar at Kolkata. Further he stated that the persons whose names were stated below, he knows only one person of them, namely Mr. Narul Islam @ Mr. Montu Biswas and he does not know other two persons, namely Mr. Atarul Haque and Mr. Latiff Haque. He came to know that Truck No.WB-57-4215 had been seized by DRI Officers on 19.9.2004 from Mr. Jayanal Abedin on 20.9.04 and consequently, he consulted with the Customs Consultant, Mr. P. K. Ghosh at Kolkata and accordingly, sent a prayer petition by registered A/D to the Customs Office at Berhampur. He stated that he has never purchased any illicit goods.
2.8 In his statement dated 4th October, 2004, Md.Senjarul Haque stated that he and his brother Mr. Ajijul Haque are the joint owners of the said truck bearing No.WB-57-4215. At the time of the seizure of the truck, their regular driver had engaged one tempary driver, namely Saheb Ali Mondal and the and the seizure of goods and vehicle was known to him on 22.9.2004.
2.9 Mr. Jainal Adebin retracted his statement dated 19.9.04. In his retraction, he has mentioned that on 19.9.04, some officers of DRI and some people got some blank paper and some sheets written in English forcibly signed by him by beating him up. He was beaten to such an extent that he had to get himself treated at Teghori Hospital on 20.9.04. The statement that the DRI made is not written by him voluntarily.
2.10. Same retractions were also made by Mr.Atarul Haque, Mr. Montu Biswas & Mr. Abdul Latiff. The said retractions were communicated to the Commissioner of Customs, P. U. M. I. T. Kolkata, West Bengal through Assistant Commissioner of Customs, Krishnanagar, Nadia.
2.11 on 5.10.2004, in his retraction, Mr. Montu Biswas had given details in respect of coercive statement obtained from him by one Shri Chinmoy Mitra, an officer of DRI.
3. On the basis of the above statements, the adjudicating authority in the second round of litigation had directed absolutely confiscation of metal scraps weighing 3030 kgs under Section 111 (b) & (d) of the Customs Act, 1962 and confiscation of vehicle bearing No.WB-57-4215 under Section 115 (2) of the Customs Act, 1962 and imposed a redemption fine of Rs.20,000/-. The personal penalties imposed were of Rs.25,000/- on Shri Azizur Rahaman, Rs.5,000/- on Shri Senjarul Haque, Rs.1000/- each on Mr. Mantu Biswas and Mr. Abdul Latiff and Rs.2000/- on Shri Jaynal Abedin and Rs.1000/- on Mr. Saheb Ali Mondal under Section 112 of Customs Act, 1962.
4. Being aggrieved by the above, the appellant filed the appeal before the Commissioner (Appeals), who upheld the Order-in-Original passed by the lower authority.
5.1 Ld. Advocate for the appellant submitted that the statements of Mr.Jaynal Abedin, Mr. Saheb Ali Mondal and Mr. Adhirshta Bhurimal, were recorded on 19.09.04 under pressure which is evident from the medical prescription enclosed at page 41 and 54 of the paper book filed before the Tribunal. He submitted that the medical prescription issued by the Medical Officer, Tegharia Hospital, would show that they had undergone serious torture during recording of their statements on 19.9.04. Mr. Jaynal Abedin by an Affidavit shown on 27.09.04, retracted his statement dated 19.9.04. Mr. Saheb Ali Mondal also retracted his statement dated 19.9.04 by affirming an Affidavit dated 6.10.04. He further submitted that Mr. Atarul Haque, Mr. Montu Biswas, Md.Abdul Latiff by affirming Affidavits, also retracted their statements on 1.10.04. All the said persons by their letter dated 5.10.04 forwarded their Affidavits to the Commissioner of Customs, Kolkata through Assistant Commissioner of Customs, Krishnagar, Nadia. It is his submission that the retractions had been duly made and submitted to the Department on 5.10.04. As such, the investigating authority had plenty of opportunity to verify the veracity of such retractions/affidavits, but no investigations were carried out. He has submitted that except the statements from the different persons on the basis of which the seized goods of metal scrap have been alleged to be illegally imported, there is no other evidence on record. Hence, only on the basis of the statements of co-accused, no adverse conclusion can be arrived at. Besides, all the statements were retracted and such retraction are valid with the support of medical prescription of Government Hospital and the Affidavits duly forwarded to the respondent authorities at the earliest opportunity. In support of this conclusion, he has placed reliance on the following judgments :
(i) Asstt.Commissioner of Customs (Prev.), Bombay Vs. Ahmd.Abdul Karim-2009 (247) ELT 97 (Bom.) ;
(ii) Commr. of Customs, Mumbai Vs. Foto Centre Trading Company 2008 (225) ELT 193 (Bom.) ;
(iii) Franchis Stanly @ Stalin Vs. Intelligence Officers, Narcotic Control Bureau, Thiruvananthapuram 2006 (12) LCX 1 (S.C.) ;
(iv) Rajkumar Damani Vs. Union of India-2010 (257) ELT 371 (Cal.);
(v) Vinod Solanki Vs. Union of India 2009 (233) ELT 157 (SC);
(vi) Commissioner of Customs (Prev.), WB, Kolkata Vs. Ritu Kumar-2006 (202) ELT 754 (Cal.);
(vii) Arif Sk. Vs. Commissioner of Customs (Gen.), Mumbai 2011 (272) ELT 0596 (Tri-Mumbai) ;
(viii) Commissioner of Customs (Prev), W.B., Kolkata Vs. Rajkumar Jaiswal-2006 (204) ELT 561 (Cal.) ;
(ix) Rasul Md. Sk. & Anwar Hossain Vs. CC (Prev.), Kolkata-2009 (247) ELT 538 (Tri.-Kol.).
5.2 The ld. Advocate has also submitted that the process of investigation started after the appellant had made a formal application on 27.9.04 claiming ownership of the said goods. It is his submission that in the said application, the appellant had categorically claimed that the impugned goods belonged to him. Consequent to the said claim, the Department has commenced investigation about the ownership of the said goods and recorded statements of various persons named to be owners in the statements recorded on 19.9.04 by Jaynal Abedin, Saheb Ali Mondal and Adhirsta Bhoimali. Further, the ld. Advocate submitted that though others were named as owner of the impugned goods, but no evidences were produced by the said named persons as owner of the said scrap. On the contrary in their statements, it was said that the said scrap was to be delivered at a commission of Rs.3000/- and the goods were procured from Bangladesh. The ld. Advocate said that all these statements cannot be relied upon as the same were duly retracted and there is no corroborative evidence in support of the said statements that the persons named are the owners. Further, he has submitted that the appellants had enclosed documents in support of his claim of ownership of the goods like, license issued by Gram Panchayat for carrying out the business as a scrap, challan, delivery challan of the said scrap, location of his shop etc. Therefore, the findings of the ld. Adjudicating Authority, which were upheld the ld. Commissioner (Appeals) that the ownership of the goods could not be ascertained, is incorrect and bad in law.
6. Per contra, the ld. A.R. for the Revenue has submitted that in their statements, Mr. Jaynal Abedin and others, had categorically admitted that the brass metal scrap is nothing but ship broken scrap and were of foreign origin. Besides the circumstances in which the seizure was made , that is the Customs Officers seized the goods after a long chase of the offended goods, itself indicates that the goods were definitely smuggled. He has submitted that the retractions made by all these persons are afterthought and cannot be accepted as valid retraction. He has referred to the judgment of the Honble Supreme Court in the case of Surjeet Singh Chhabra Vs. Union of India 1997 (89) ELT 646 (SC) and Amad Noormamad Bakali Vs. State of Gujarat- 2011 (274) ELT 17 (Guj.).
7.1 Heard both sides and perused the records. I find that the issue involved relates to seizure of brass metal scrap on 19.9.04 on the ground that they were of foreign origin and illicitly brought into India. Needless to mention that the said brass metal scrap is not a notified item under Section 123 of the Customs Act, 1962 during the relevant time. It is the case of the appellant that since if it is not notified goods, burden lies on the Revenue to establish that the said brass metal scrap were of foreign origin and smuggled into India. It is their claim that on both these counts, the Revenue has miserably failed to establish the same and hence the goods are not liable to confiscation. The Tribunal in its earlier proceeding, allowed the appeal filed by the appellant on the ground that the Revenue has failed to discharge the burden in establishing that these goods were of foreign origin and smuggled into India. However, on appeal filed by the Revenue, the Honble High Court has remanded the matter to consider the statements of various persons and retractions made by these persons in deciding the issue afresh. I find that on the date of interception of the vehicle loaded with the said brass metal scrap, the statements of three persons were recorded, who in their statements admitted of loading of the said brass scrap in the vehicle and the said brass scraps were of foreign ships. The Truck driver, Shri Jaynal Abedin, Mr. Saheb Ali Mondal, who accompanied the said vehicle and Mr. Adhirsta Bhoimali had admitted that these scraps were of foreign ships and loaded in the said vehicle in the presence of Azi Pradhan, Montu Biswas and Ataur Rahaman and Latiff Shaikh. Further, they have disclosed that when asked to stop their vehicle by the officer of Customs, the vehicles speed was increased to fled away out of fear. These persons later retracted their statements on 27.9.04 by filing proper affidavits before the Judicial Magistrate. In the retraction, Mr. Jaynal Abedin mentioned that he was beaten to such an extent that he got himself treated at Tegharia Hospital on 20.9.04 and the statement made to DRI was not written by him voluntarily. All these retractions were submitted to the Department through the Assistant Commissioner of Customs, Krishnanagar, Nadia. The statements of Montu Biswas and Atarul Haque, were also recorded on 1.10.04. In their statements, it was stated that he along with other two partners, namely, Atarul Haque and Latiff, was the owner of 3030 kgs of illicit brass and metal scrap broken ships. They have also retracted their statements subsequently. On 5th October, 2004, Montu Biswas in his retraction had given the detail account as to how the statement was forcibly recorded by one Shri Chinmoy Mitra, an officer of DRI. On careful analysis of these statements and retractions, it can be inferred that solely on the basis of the statements of these persons, it would be difficult to arrive at a conclusion that the impugned goods namely, brass metal scrap are of foreign origin and was smuggled into India by the appellant. The adjudicating authority as well as the ld. Commissioner (Appeals) has discarded these retractions observing that these are after-thought and such belated retractions cannot be acceptable. I find that the retractions were made by swearing Affidavit supported medical certificate and forwarded to the Department. Hence, these retractions cannot be totally ignored. Therefore, the statements accepting these goods as of Bangladeshi origin and smuggled into India cannot itself be accepted, unless other corroborative evidences indicating the same were of foreign origin, are produced. I find that the adjudicating authority has observed that the place of interception of the vehicle is quite prone to and notorious for illegal movement of the goods due to smuggling through the nearby vast Indo Bangladesh Land Border or riverine routes necessating to set up number of Customs Preventive Units and BSF BOP near and away from the Border in the region. Further, he has observed that the seized goods loaded is a common item for smuggling due to its high value and difficulties in proving its foreign origin nature by the Department and capability for cross border movement through small carriers without any interception by Customs or BSF. I find that these observations are of general in nature and cannot be considered as circumstantial evidence and could be used as corroborative evidence to the retracted statements of various persons. At best, it could be circumstances for raising a strong suspicion but cannot take the place of evidence in arriving at a conclusion that the impugned goods were of foreign origin and smuggled into India.
7.2 The principle of law on reliability of retracted statements has been settled by the decision of the Honble Bombay High Court in the case of Ahmed Abdul Karim (cited supra), wherein it has been observed at Para 16 as follows :
16.?Considering the law laid down by the Apex Court, even assuming that the confessional statement of the 1st respondent was voluntary and was true, as a rule of prudence, the Court is required to seek assurance getting corroboration from the other evidence adduced by the prosecution. Thus, the Court is required to find out whether there are other facts and circumstances on the record to corroborate what is stated in the retracted confession. As stated earlier, except for the statements of 1st and 2nd accused under Section 108 of the said Act of 1962, there is nothing on record to corroborate what is stated in the confessional statement of the 1st respondent. Thus, if at all any assurance is to be drawn or assurance is to be taken, the same will have to be on the basis of statements of 1st and 2nd accused under Section 108 of the said Act which have been retracted. Thus, in short, now the question which remains to be decided is whether retracted confessional statements of the co-accused who are not being tried with the accused can be used as corroborative evidence for drawing assurance to what is stated in the statement of the accused (1st respondent) under Section 108 of the said Act, of 1962. 7.3 The Honble Supreme Court in the case of Vinod Solanki (cited supra) on the said issue, had observed at Para 22 as follows :
22.?It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. {See Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras [(1999) 6 SCC 1]} 7.4 This Tribunal analyzing the principle of law settled by the Apex Court in various cases, has recorded a finding in the case of Arif Shaikh (cited supra) as under :
13.We reject the? statements as evidence being not voluntary and true. As held by the Apex Court in the Pavunny case, rule of prudence and practice requires that a Court seeks corroboration of the retracted confession from other evidence. In the instant case the passenger who incriminated the respondent did not appear before the authorities. Other major party to the transactions Shri. John Baretto did not also participate in the proceedings. No corroboratory evidence of the respondents involvement was gathered by the revenue. In the circumstances, we find no reason to interfere with the impugned order. Accordingly, the appeal filed by the Revenue is rejected. 7.5 I also find that almost identical circumstances involving similar goods, the Honble High Court of Calcutta in the case of Raj Kumar Jaiswal reported in 2006 (05) LCX 0321, had observed at Para 6, as follows :
6.?It is true that the statements made under Section 108 of the Act can be used against the persons from whom the materials have been seized without any corroborative evidence, provided, such statement is recorded after service of summons as required under the Act and that those are voluntary. In the cases before us, all that has been proved is that metal-scraps, even having no marks of foreign origin, have been transported from lslampur in the district of Murshidabad to Calcutta. The seized goods in question being undisputedly non-notified item in terms of Section 123 of the Act, the initial onus is upon the Revenue to prove that those are of foreign origin at the first instance and if the said ingredient is proved, it must further be proved to be smuggled one without the payment of duty. In this case, even the first ingredient has not been established. If the Revenue is unable to disclose even the name of the foreign country where these goods are allegedly manufactured and at the same time, is unable to produce any body who actually smuggled any part of the goods from Bangladesh and in the report on the result of the chemical examination, there is no indication that those are of foreign origin, the Tribunal did not commit any illegality in setting aside the order of confiscation, penalty etc. imposed by the Commissioner. The only reason for forming the alleged reasonable belief that those were smuggled ones was that those were brought from the District of Murshidabad and that there is no seaport near the said District. We find that such findings recorded by the Commissioner are based on mere conjecture. 7.6 I also find that this Tribunal in the case of Rasul Md. Sk. & Anwar Hossain (cited supra) following the said judgement of the Honble Calcutta High Court in similar circumstances, has recorded its finding as under :
4.?Admittedly the facts are that the metal scrap is not notified under Section 123 of the Customs Act, 1962. Therefore, the onus is on the Revenue to show that the scrap is smuggled in nature. There is no evidence to show that there is any marking on the scrap regarding Bangladesh origin. The initial statement was retracted and the occupants were medically examined with a simple injuries were found on the persons. I find that the Honble Calcutta High Court in the case of Commr. of Customs (Prev.), W. B. v. Raj Kumar Jaiswal - 2006 (204) E.L.T. 561 (Cal.), held that in case of non-notified goods in terms of Section 123 of Customs Act, 1962, initial onus is upon the Revenue to prove foreign origin at the first instance and if it is proved, it must further be proved to be a smuggled one without payment of duty. In the present case, there is no evidence on record to show that the goods are of foreign origin as there is no marking on the scrap and the same is smuggled into India. Therefore, the onus is not discharged by the Revenue. In the circumstances, I find merit in the contention of the appellants and the impugned order is set aside and both the appeals are allowed. 7.7 I find that the common principle runs through the aforesaid decisions is that when a statement furnished under Section 108 of the Customs Act before the Customs Authorities, the said statements no doubt is admissible as evidence, but when there is a subsequent retraction of the said statements then the weight of the said evidence is considerably reduced and there is a necessity for looking at corroboration of the said evidences. In other words, the statement furnished by the persons may not lose its evidentiary value, but a conclusion cannot be arrived at solely based on the said statements unless corroborated by other material particulars. Evidence is weighed and not numbered is the cardinal principle of rule of evidence. In the present case, except the statement of the persons referred to above, there is no other corroborative evidence indicating that the impugned goods were of foreign ship breaking scrap and illicitly imported into India. In these circumstances, I find that the Revenue has failed to discharge its burden in establishing that the goods were of foreign origin and smuggled one particularly when the impugned goods were not notified under Section 123 of the Customs Act, 1962. Also, I find that there are sufficient documentary evidences adduced by the appellant in comparison to others about ownership of the said scrap which has not been contradicted with substantial evidences except in the form of statements which were later retracted by the said persons. In these circumstances, I do not find any merit in the orders passed by the lower authorities. Therefore, the impugned orders are set aside and the appeal filed by the appellant is allowed. Appeal is allowed with consequential relief, if any, as per law.
(Pronounced in the open Court on 22.06.2012) Sd/ ( DR. D. M. MISRA ) JUDICIAL MEMBER mm 21 Cus.Appeal No.295/07