TMI Blog2015 (9) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the cases in which statements of other persons were recorded. Shipping bill was filed showing the recipient as M/s. C.P. General Trading LLC, Deira, Dubai. There is no attempt by the Revenue to show that the said alleged recipient of the goods has any connection with the appellant. As such when the appellant’s name was not even shown as recipient, the imposition of penalty upon him based upon uncorroborated statement of one of the accused, without there being any independent, admissible and tangible evidence, is neither justified nor warranted. - no reason to uphold that part of the impugned order of Commissioner for which he imposed penalty upon the appellant - impugned order is set aside - Decided in favour of assessee. - C/20143/2015-DB - Final Order No. A/21869/2015 - Dated:- 8-9-2015 - Smt. Archana Wadhwa, Judicial Member and Shri Ashok Kumar Arya, Technical Member, JJ. For the Petitioner : Shri Karan B, Advocate For the Respondent : Shri Pakshi Rajan, Asst. Commissioner(AR) ORDER Per : ARCHANA WADHWA The challenge in the present appeal is to imposition of penalty of ₹ 10 lakhs on the appellant, who is a resident of Dubai, in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who was assisting him in all activities along with Shri Prakash @ Senthil. He also gave the details of the previous exports of red sanders. 5. The statement of Shri Prakash @ Senthil was recorded on 17/11/2012 wherein he accepted the details given in the statement of Shri Kannan. Statement of Shri Suresh Kumar, Driver of the container trailer was also recorded. 6. On the basis of the disclosures made by Shri Yousef Moideen, Shri Kannan and Shri Senthil, Shri Antony Morris, resident of Cochin was summoned and his statement was recorded on 17/11/2012. In the said statement, he deposed that he met Shri Kannan for the first time in Willingdon Island around 10 months ago; that his details were given to Shri Kannan by Shri Moideen of Hongkong, who in turn got the said details from on Shri Shafeek, Thalassery ( the appellant in the present case); that he knew Shri Shafeek for the last 6 years but does not know his address; that Shri Shafeek was currently doing business in Dubai; that he discussed about logistic support and clearing facilities for smuggling of red sanders to Dubai with Shri Kannan and he agreed to arrange containers and trailers and also to help in clearing of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h link to Cochin. He further observed that although the appellant had not visited India after 26/07/2012, call data records of Shri Kannan and Shri Antony Morris during February 2012 to November 2012 obtained from the service providers showed that they were in contact with Shri Shafeek in Dubai, on a regular basis. He also referred to another case of smuggling in the past where red sanders were seized and statement of one Shri Anil Kumar was recorded wherein he had named the appellant as the person to whom the red sanders were to be exported. On the said basis, he held that the appellant is liable to penalty and imposed penalty of ₹ 10 lakhs under Section 114(i) of the Customs Act. 9.1. Learned Advocate Shri Karan appearing for the appellant has assailed the impugned order on the point of jurisdiction as also on merits. It is the contention of the appellant that admittedly he is a resident of Dubai and has been staying there for over two decades. Even at the time of export of the alleged prohibited goods, i.e. in November 2012, he was not in India. His last visit to India was only in July 2012 and that too for a limited period of 7 days. He submits that inasmuch as the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a discrepancy in the statement of Shri Antony Morris evidently leads to a fact that Shri Shafeek i.e. appellant is not at all connected with the attempted smuggling of red sanders. In any case, it is well settled law that in the absence of any independent corroboration, the statement of co-accused cannot be made the basis for implicating the noticee. He further submits that the statements were retracted by Shri Antony Morris alleging torture to him and such statement cannot be made basis for penalizing the appellant. 10. Learned DR appearing for the Revenue reiterates the reasonsings adopted by the Commissioner and submits that the appellant is the kingpin sitting in Dubai, engaging himself and organizing everything for illegal export of the red sanders. 11.1. We have considered the submissions made by both the sides. After having gone through the facts of the case, we find that subsequent to the detection of the matter at International Container Transshipment Terminal and seizure of the red sanders, detailed investigations were made by the Revenue. As per records, the shipping bill was filed by one Shri Yousef Moideen, Proprietor of M/s. Suweihan Exporting for export of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a records showing telephonic talks between the appellant with Shri Kannan and Shri Antony Morris. What was the subject matter of the conversations during the call records has not come on record. Merely on the basis of such call records, it cannot be concluded that the appellant was the kingpin of smuggling operations, as concluded by the adjudicating authority. It may be observed here, even at the cost of repetition, that except Shri Antony Morris, no other person has named the appellant in the detailed statements recorded by the Revenue. If the goods were meant for the appellant, admittedly the other concerned and connected accused persons would have known about him and would have disclosed the name of the appellant. Not even Shri Kannan, who according to the Revenue, is the kingpin of smuggling operations in India, had mentioned about the appellant. As such, we agree with the learned advocate that the retracted statement of a co-accused cannot be adopted as an evidence to conclude against the appellant, without any other independent corroborative evidence. 11.4. It may not be out of place to mention that the Commissioner for arriving at the findings against the appellant had a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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