TAX CASES No.23 OF 2001 COMMISSIONER, CUSTOM DEPARTMENT------Appellant) Versus HARENDRA PRASAD---------------------------------(Respondents) ----------- (Against the order dated 31.5.2001 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, Kolkata, in Appeal C-259/2000) -------- For the applicant : Mr. Rakesh Kumar Singh, Advocate. For the Respondent : Mr. Satish Kumar Sinha, Advocate. -------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan,JJ On 19.04.1991, a passenger bus was intercepted by the Officer of Motihari Custom. In the said bus one Ram Lochan Sah was found traveling and from him 5 pieces of silver bars of 97.40% purity weighing 8.559 kgs were recovered. The Custom Authority seized the said silver on a reasonable belief that it was smuggled. The statement of Ram Lochan Sah was recorded on 28.4.1991. In the said statement he has stated that the silver was handed over to him by Harendra Prasad respondent herein at Raxaul and was to be delivered to one Santosh Kumar Agrawal at Siwan. During investigatyion Santosh Kumar Agarwal was interrogated but he denied to have placed any order for supply of silver in - 2 - question. Harendra Prasad however claimed that the seized silver is part of business stock in as much as he carries the profession of silvlersmith. A show cause notice was issued to Harendra Prasad as to why the silver seized be not confiscated and personal penalty not imposed on him. Harendra Prasad filed show cause and on adjudication, the Deputy Commissioner confiscated the silver and imposed a personal penalty of Rs. 15,000/ on him. Appeal preferred by him against the order of Deputy Commissioner was dismissed by the Commissioner appeal. Harendra Prasad then carried the matter further in appeal before the Custom Excise &Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata (hereinafter referred to as the tribunal.) The tribunal by order dated 30th of May 2007 set aside the order of confiscation and imposition of personal fine passed by the Deputy Collector as affirmed by the Commissioner (Appeal). While doing so it observed that the revenue has not produced any evidence to prove that the silver in question was of foreign origin. It further observed that to shift the onus in terms of provision of section 123 of the Custom Act the revenue has first to establish that the - 3 - goods seized are of foreign origin and only thereafter onus will shift on the person from whom the goods have been seized. It also took into consideration the retracted statement of Ram Lochan Sah but in the absence of any corroboration it did not place implicit reliance on the said statement. Aggrieved by the same the Commissioner of Custom has preferred this application under section 130 A of the Custom Act. This Court in exercise of its power under section 130 A of the Custom Act (hereinafter referred to as „the Act‟) directed the Tribunal to draw the statement of case and refer the following questions of law for determination; (i)“ Whether the Tribunal was justified in ignoring the confessional statement of Ram Lochan Sah who has stated that the seized silver was handed over to him by the respondent Harendra Prasad in Nepal after purchasing the same in Nepal” (ii)“Whether the finding of the Tribunal is vitiated on account of non-consideration of the material evidence and misconstruing the law.” Mr. Rakesh Kumar Singh, appearing on behalf of the petitioner submits that the confessional statement of Ram Lochan Sah is admissible in evidence in view of section 108 of the Act and that was sufficient to hold that the silver - 4 - seized is smuggled one. Mr. Satish Kumar Sinha, however, appearing on behalf of the respondent contends that mere confessional statement of Ram Lochan Sah shall not lead to the conclusion that the silver seized was smuggled. It is worth mentioning that the silver seized is less than 10 kgs. Its purity has been found to be 97.40%. Further it does not contain any mark of foreign origin. Ram Lochan Sah in his statement has though stated that it was given to him by Harendra Prasad, a Silversmith of Raxaul and he had purchased the same from Birganj ,Nepal. In the statement relied upon by the Custom Authority, he had not claimed to be a witness of purchase of silver by Harnedra Prasad from Nepal. The cumulative effect of all these infirmities led the Tribunal to conclude that it has not been proved that the silver seized was of foreign origin. In the back ground of the aforesaid fact can it be said that the Tribunal erred in ignoring the statement of Ram Lochan Sah and the finding recorded by the Trinbunal is - 5 - vitiated on account thereof. We are of the opinion that the finding of the Tribunal can be said to be vitiated only when it is found that it has been recorded without considering relevant material or considering irrelevant material or a person duly instructed in law will not reach the said finding. Here in the present case Ram Lochan Sah does not claim to be a witness of purchase of silver from Nepal by Harendra Prasad. According to him Harendra Prasad had handed over the silver to him at Raxaul. Not only this, the silver did not have any mark of foreign origin .Its purity is 97.40 % ,whereas in the case of silver of foreign origin it is normally of 99.99 %. In these backgrounds, we are of the opinion that the Tribunal was justified in not relying on the confessional statement of Ram Lochan Sah. Accordingly our answer to the questions No.1 formulated is in the affirmative, against the revenue and it is held that the Tribunal was justified in ignoring the confessional statement of Harendra Prasad. From what we have stated above it is evident that Tribunal‟s findings is on assessment of relevant material. - 6 - Accordingly answer to the second question is in the negative, against the revenue and it is held that the Tribunal finding is in accordance with the law and not vitiated on any count. Reference is answered accordingly. Tax case stands disposed of. Patna High Court 15th Sept.2008 Rahman/NAFR (Chandramauli Kr. Prasad, J) (Dr. Ravi Ranjan, J)