cites: 50326710

Section 123 in The Customs Act, 1962 [Entire Act]

Union of India - Section Cites 0 - Cited by 1048

Section 108 in The Customs Act, 1962 [Entire Act]

Union of India - Section Cites 0 - Cited by 3224

Surjeet Singh Chhabra vs Union Of India & Ors on 25 October, 1996

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.).

Supreme Court of India Cites 0 - Cited by 235 - Full Document

Pon Adithan vs Deputy Director, Narcotics Control ... on 16 July, 1999

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 :

Supreme Court of India Cites 5 - Cited by 75 - Full Document

State Of W.B vs Orilal Jaiswal on 23 September, 1993

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 The initial statement was retracted and the occupants were medically examined with a simple injuries were found on the persons.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.

Supreme Court of India Cites 5 - Cited by 456 - G N Ray - Full Document