Cus - It is not task of Court to review or second guess factual findings based on evidence considered by lower authorities, but only to correct an order if it is based on manifestly incorrect construction of facts: HC
By TIOL News Service
NEW DELHI, FEB 06, 2015 : THE CESTAT - 2014-TIOL-2423-CESTAT-DEL while rejecting the appeal of M.P.Goenka against imposition of penalty of Rs.5 lakhs by the adjudicating authority observed thus -
"13.1 It is a proved case of finding of Chinese silk in Maruti van as well as in the premises of Shri Sanjay Maheswari when the live link showing origin and movement thereof through the transporter Prakash Transport Company from Nepal supplied by Shri Anil Jatia to ShriM.P. Goenka was on record and that could not be rebutted. Arrival of such goods in India through Prakash Transport Co. and release thereof from that transporter on instructions of ShriM.P. Goenka through his person ShriMonuHaldar also could not be ruled out by the appellants.
13.2 ShriM.P. Goenka categorically brought out in his statement made on 21.09.1998 that when he visited Kathmandu, he came across on Shri Anil Jatia, one of the owners of ShriAnnapoorna Textiles Ltd. and he was able to strike deal with him for Chinese silk to be supplied to Shri Sanjay Maheswari of Delhi on commission basis. Such fact comes out from paras 10.1 and 10.2 of the adjudication order. The connection of Shri Sanjay Maheshwari with ShriM.P. Goenka to take delivery of goods came from Nepal through the transporter, Prakash Transport Co. was established and that remained uncontroverted. That proved the fact of arrival of Chinese silk from Nepal, which were delivered to him on instructions of ShriM.P. Goenka.
13.3 None of the appellants claimed the goods. The connection among Shri Anil Jatia, ShriM.P. Goenka and Shri Sanjay Maheshwari brought out a close proximity to the deal of the Chinese origin silk found in Maruti van as well as in the premises of Shri Sanjay Maheswari. When they did not claim the ownership of the goods, their plea that the goods were not of Chinese origin is of no avail to them since Revenue established live link between ShriM.P. Goenka and Shri Anil Jatia as to the movement and deal of the offending goods came from Nepal to India for delivery to Shri Sanjay Maheswari.
14. In view of the aforesaid cogent and vital evidence on record, there is no necessity to deal with further arguments of the appellants as to the retraction of confessional statement and such cogent evidence calls for dismissal of both appeals. It is ordered accordingly."
Against this order the appellant has filed an appeal before the Delhi High Court.
The appellant argued that the order of the CESTAT is based completely upon his confessional statement, which is vitiated due to duress and coercion, and was subsequently retracted in court. They rely on the Supreme Court decision in VinodSolanki - 2009-TIOL-01-SC-FEMA and BalwantKaurvs Union Territory of Chandigarh, AIR 1998 SC 139 for the proposition that reliance upon a retracted confession, without any corroborating material, vitiates a finding of guilt. It is also argued that the exoneration of the other accused in separate enquiry proceedings signifies that the finding of the CESTAT that there was a "live link" between him and the other accused, also cannot stand.
The High Court distinguished the decisions cited by the appellant by noting thus -
+ VinodSolanki(supra) merely holds that a retracted confession ought to be considered in light of the totality of circumstances, and - as a rule of prudence - ought to be corroborated by material evidence. As the extract from the Commissioner's order demonstrates this is exactly what the Commissioner concluded before proceeding to examine the corroborative evidence. Consequently, VinodSolanki (supra) is of no assistance to the appellant.
+ BalwantKaur(supra) was a case about the probative value of an accomplice's testimony in a criminal case, and, therefore, bears no relevance to this case.
After extracting from the apex court decisions in K.T.M.S. Mohammed. vs Union of India, AIR 1992 SC 1831, K.I. Pavunny v. Asst. Collector (HQ) Central Excise Collectorate, Cochin - 2002-TIOL-739-SC-CUS-LB & GulamHussainShaikhChougulevs S. Reynolds (2002) 1 SCC 155 in the matter of evidentiary value of a confession to a customs officer, the High Court observed that the orders of the Commissioner (Preventive) and the CESTAT, in its opinion, were entirely in accordance with the law declared by the Supreme Court.
The High Court referred to the decision in RadheyshyamKejriwalvs State of West Bengal, (2011) 3 SCC 581 and added that the proceedings under tax legislation such as the FERA or the Customs Act do not require the prosecution to discharge the criminal-law burden of proof beyond reasonable doubt.
While dismissing the appeals, the Court observed -
"It is not the task of this Court, exercising its appellate power in cases involving substantial questions of law, to review or secondguess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities, but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis-appreciation of law or on non-application of mind. In the present case, this Court sees no reason to interfere with the concurrent findings of the Commissioner (Preventive) and the CESTAT which are both reasoned, correctly stating the law, and citing relevant evidence and reasoning in order to arrive at their conclusions ….”
(See 2015-TIOL-282-HC-DEL-CUS)
