Order Nos. A-499 & 500 Cal./91 arising from in Appeal Nos. C-178 & 179/88. Case: Debu Saha Vs Collector of Customs (Preventive). CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)

Case Number:Order Nos. A-499 & 500 Cal./91 arising from in Appeal Nos. C-178 & 179/88
Party Name:Debu Saha Vs Collector of Customs (Preventive)
Counsel:For Appellants: Shri S.K. Roy and B.N. Chattopadhyay, Barrister and Consultant respectively and For Respondents: Shri M.N. Biswas and A. Chowdhury, S.D.R. and J.D.R. respectively.
Judges:Shri K. Sankararaman, Member (T) and T.P. Nambiar, Member (J)
Issue:Customs Act, 1962 - Sections 110, 112, 24, 111(b), (d), (p), 111 (o), 111(d)
Citation:1992 (59) ELT 442 (Tribunal)
Judgement Date:July 29, 1991
Court:CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
 
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Order:

T.P. Nambiar, Member (J), (East Regional Bench At Calcutta)

  1. This is an appeal filed by the above-captioned appellants against the orders passed by the Collector of Customs (Preventive), Calcutta in Order No. l/Cus/WB/88. In term of that order he confiscated the medicinal powder in this case and the gunny bags in which they were so found. The VCR seized was also confiscated. The ball-point pens and perfume were also confiscated. The truck under seizure was confiscated and the same was ordered to be released. A personal penalty of Rs. 50,000.00 each was imposed on the above-captioned appellants under Section 112 of the Customs Act, 1962.

  2. The appellants have challenged the legality of the imposition of penalty as well as the confiscation of the VCR and the ball-point pens and perfume. The facts of the case are that on reliable information the Customs Officers of Diamond Harbour Preventive Unit on 15-5-1986 at about 03.00 hrs. saw a lorry at Kulpi Crossing going towards Lakshmikantapur. The lorry was stopped by them and they found three persons in the lorry. They were Shri Prafulla Debnath; Shambhu Das and Haradhan Das. There were 57 gunny bags containing medicinal powder valuing Rs. 37,78,500.00 along with five documents and also six keys having no commercial value and these were seized from that lorry. The medicinal powder was seized under Section 110 of the Customs Act, 1962 on reasonable belief that the same was illegally imported into the country.

  3. The above-said three persons were interrogated on the same day. They disclosed that the above medicinal powder was imported from Bangladesh and they picked up the same at Harwood point at about 01.00 hr. and the crew of the boat loaded them into the lorry. All these three persons stated that the above-captioned appellants directed them to pick up the medicinal powder from the above-said place and under their direction they went there. Shri P. Debnath stated that he was given a sum of Rs. 2,000.00 for his services. Shri S. Das stated that as per the instruction of the appellants he arranged for the lorry. So also Haradhan Das stated that the milk powder was taken at the instance of the appellants. Show Cause Notice was issued to the appellants and the others including the above-said three persons and after adjudication the impugned order was passed.

  4. The learned Barrister, Shri S.K. Roy contended before us on behalf of the appellants that the statement given by Shri Gour Hari Saha was not a voluntary statement. It was tendered by him due to assault. He also relied on the medical report given by the Jail Doctor. He, therefore, contended that the statement cannot be relied upon. In support of his contention he relied on the decision of the Supreme Court reported in AIR 1979 SC 705 in the case of Sevantilal Karsondas Modi v. The State of Maharashtra and Another. He, therefore, contended that if this statement is excluded then what remains is the statement of the co-accused and the statement of the co-accused is not corroborated by any independent source. He, therefore, contended that the evidence of one co-accused cannot be corroborated by the other co-accused. In this connection, he relied on the decision of the Supreme Court reported in AIR 1970 SC 45 in the case of Mohd. Hussain Umar Kochra etc. V.K.S. Dalipsinghji and Another etc. As far as the VCR is concerned he contended that the document under which it was brought to the country was the baggage receipt so shown to the officers. He also pointed out that the same was brought under a valid baggage receipt and the confiscation of the same under Sections 111(d) and 111(p) of the Customs Act, 1962 is not in accordance with law. He also contended that it cannot be confiscated under Sec. 111(o) on the ground that this section was not mentioned in the show cause notice...

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