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2022 (12) TMI 1341 - HC - CustomsLevy of penalty u/s 114 of Customs Act - Garments made of inferior quality fabric but, declared to be made of Corduroy/Denim/Viscose fabric to fraudulently avail duty free import credit - whether there are corroborative evidences like statements of the co-noticees, recovering of large sum of money by the Enforcement Directorate from the premises of co-noticee, who is close associate of the respondent and recorded perverse findings? HELD THAT:- In ROMESH CHANDRA MEHTA VERSUS STATE OF WEST BENGAL [1968 (10) TMI 50 - SUPREME COURT], it is held that a Customs Officer under the Act is not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act. It is further held that a statement under Section 108 of the Act is not a statement made by a person accused of an offence, and the person who gives the statement does not stand in the character of an accused person - it is clear that the statements of a person made under Section 108 of the Act 1962 should not and cannot be construed as a statement of a co-accused, for when a Customs Officer records a statement under that sections of the Act, he does not act as a Police Officer, but he merely acts as a Revenue Officer, whose duty is to find out whether or not there is an evasion of customs duty in a particular transaction. The statements made by Suresh Prabhu should be considered not as a confessional statement of a co-accused, but as an independent piece of evidence. It is thus evident from his statements that the respondent was involved in the offence. Hence the contention of Shri Phanindra that other independent evidence is required, is untenable and liable to be rejected. Whether the Tribunal was justified in dropping the penalty? - HELD THAT:- The findings of the DRI and statement made by the co-noticees, it is clear that the respondent had received and made payments for the illegal exports. Without his involvement, the chain of circumstances leading to the commission offence would be incomplete. In our view, respondent has aided in making remittance from Dubai which amounts to abetment. Thus, Respondent has played a major role in the commission of the offence - the abetment by the respondent, adjudicating Authority vide order No.01029/2014 was justified in imposing a penalty under Section 114 of the Act and the view taken by the CESTAT and dropping the penalty is perverse. Applicability of the Customs Act, 1962 - HELD THAT:- In the instant case, as per the statements of Suresh Prabhu, payments were sent to India by respondent and excess payment was also collected by him through people known to him. The illegal goods were detained in the Mangalore port. A major part of the offence has taken place in India. Therefore, in our view, the provisions of Customs Act are applicable.
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