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(5) In this connection, ld. counsel claimed support from Collector vs East Punjab Traders 1997 (89) ELT 11 (S.C.) and Bussa Overseas Properties Ltd. vs Commissioner 2001 (137) ELT 637 (Tri- Mum) affirmed in 2007 (216) ELT 659 (S.C.). He also referred to statements of Dungarmal Doshi. Among the numerous statements given by Shri Dungarmal Doshi, one dated 25.5.99 and another dated 27.5.99 were particularly referred to by the counsel. In his statement dated 25.5.99, Shri Dungarmal Doshi had, inter alia, stated to the effect that the expression 38 kgs used in his letter dated 24.5.94 (page 132/PB) meant US $ 38,000. He had also stated that Modi Bros. had been their indenting agents for procuring materials from ODC initially, but later on they started purchasing materials from ODC directly. This part of the statement of Dungarmal Doshi was used by the adjudicating authority as evidence of Dungarmal Doshi having paid US $ 38,000/- to ODC for the goods covered by invoices No. 93288 and No. 93292. The ld. counsel submitted that the above statement was subsequently retracted by Dungarmal Doshi in his statement dated 8.3.2000 wherein Dungarmal Doshi stated that he had no knowledge about 38 kgs mentioned in the aforesaid letter dated 24.5.94 (page 132/PB). In this connection, the ld.counsel also referred to a letter dated 27.5.99 of the advocate for Dungarmal Doshi addressed to the DRI (Page 167/PB) which was accompanied by a letter of even date written by Dungarmal Doshi to the DRI (page 170/PB). Dungarmal Doshi in his letter stated that his statement dated 25.5.99 had been recorded by coersion, force, pressure, promise and physical assault and that anything contained in the said statement was not true or correct. The advocates letter purported to bring on record of the DRI the retraction letter of Dungarmal Doshi. The ld.counsel argued that the confessional statement dated 25.5.99 having been validly retracted by Dungarmal Doshi could not be relied on against him and, consequently, there was no connecting link between the Bank Advice and other documents.

 The standard of proof required in the Departmental proceedings under the provisions of the Customs Act, 1962 or Central Excise Act, 1944 or of the Rules made thereunder, for confiscation of goods, confirmation of demand for duty evaded, and imposition of penalty is the preponderance of probability. For establishing to be preponderance of probability, the adjudicating authority or the Tribunal has to evaluate the evidence of both the sides and decide what is most probable This view was taken by relying on the apex courts ruling in Collector vs D.Bhoormull [1983 (13) ELT 1546(S.C.)]. The ld.SDR submitted that the faxed documents were apparently retrieved from the premises of Modi Bros., the indenting agent for ODC, who handled all the purchase orders placed on ODC by Dungarmal Doshi during the material period. He submitted that Anil Modi, who was also present when the documents were retrieved by DRI from the said premises, in his statement established a connection between those documents and the subject-transactions. Anil Modi did not retract his statement. Therefore, according to the SDR, the faxed letters/messages retrieved by the DRI from the premises of Modi Bros. on 13.5.99 were not to be lightly discarded. Contextually, relying on the apex courts judgment in Commissioner of C.Ex.,Madras vs Systems & Components Pvt.Ltd. [2004 (165) ELT 136 (S.C.)], the ld.SDR also contended that no proof was required for admitted facts. It was submitted that the interpretation given to letter dated 24.5.94 (page 132/PB) by Dungarmal Doshi in his statement dated 25.5.99 was of formidable support to the adjudicating authority to decode the term 38 kgs in the said faxed letter of Dungarmal Doshi to ODC and to arrive at the conclusion that an amount of US $ 38,000/- was paid by Dungarmal Doshi to ODC. According to the ld. SDR, as Dungarmal Doshi himself had given a statement supportive of the documentary evidence retrieved by the DRI, it was not necessary for the investigating agency or the adjudicating authority to subject the document to forensic examination. Referring to the retraction by Dungarmal Doshi, the SDR submitted that such retraction was not to be accepted and that the same was rejected forthwith by the DRI on specific grounds in a letter dated 28.5.99 to Dungarmal Doshi. The SDR submitted that, if the earlier statement dated 25.5.99 of Dungarmal Doshi had been extracted by use of coersion, force, pressure, promise or physical assault as alleged by him, the burden was on him to prove the allegation. In the absence of such proof, the statement dated 25.5.99 was to be treated as voluntary. In this connection, reliance was placed on case law viz.Surjeet Singh Chhabra vs Union of India 1997(89) ELT 646 (S.C.) ; Vinod Solanki vs UOI 2009 (233) ELT 157 (S.C.) ; Jogani Tyres (India) vs. Commissioner 2010 (255) ELT 264 (Tri- Mum,).

(10) The statement dated 25.5.99 was retracted by Dungarmal Doshi on 27.5.99 and the ld. counsel has heavily relied on this retraction. In this connection, the submissions made by the ld.SDR are found to be forceful. Shri Dungarmal Doshi, in his retraction letter addressed to the DRI, alleged that his earlier statement dated 25.5.99 had been recorded by coersion, force, physical assault etc., but he is yet to prove this charge, nor is there any material on record indicating that any complaint was filed with police against the alleged assault by DRI officers. If the retraction has to be accepted, Dungarmal Doshi has to prove his allegation. We note that, upon receipt of Doshis retraction letter, DRI issued letter dated 28.5.99 (copy produced by SDR) informing Doshi thus :