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2015 (9) TMI 1257 - CESTAT BANGALORE

2015 (9) TMI 1257 - CESTAT BANGALORE - 2015 (325) E.L.T. 199 (Tri. - Bang.) - Illegal export - instead of the declared goods as cargo of coir pith, red sander logs were found to be stuffed. - Seizure of goods - Misdeclaation of goods - Clandestine removal of goods - Imposition of penalty - entire case of the Revenue rests upon the sole retracted statement of Shri Antony Morris. - Held that:- Commissioner for arriving at the findings against the appellant had also referred to the statement of one .....

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n be made to the earlier statements or the statements of any other person so as to conclude against the accused in a particular case, which is not at all connected with 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 .....

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a, 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 Section 114(i) of the Customs Act, 1962. 2. After hearing both the sides duly represented by Shri Karan, Advocate and Shri Pakshi Rajan, Assistant Commissio .....

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bill in respect of the said container was filed by one Shri Yousef Moideen, Proprietor of M/s.Suweihan Exporting, Desamangalam, Trichur, he was summoned by the officers for recording of his statement. As per Shri Yousef Moideen, IE code was taken by him in the name of M/s. Suweihan Exporting as per the instructions of one Shri Musthafa whom he met while working in Gulf. The said IE code was obtained with an intention to import readymade wooden doors. As the import of wooden doors was an expensi .....

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ds the present consignment, he gave the details of various meetings and how the consignment of red sanders was misdeclared as that of coir pith. 4. As a result of disclosure made by Shri Yousef Moideen, statement of Shri Karunakaran @ Kannan was recorded on 17/11/2012. He gave the details of renting of godown, procurement of red sander logs, his introduction to Shri Yousef Moideen. He also deposed that as per directions of Shri Moideen, he contacted one Shri Antony Morris of M/s. AGL Forwarders, .....

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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 .....

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Shri Jayan, Shri Musthafa and Shri Ashraf. The said Shri Antony Morris subsequently retracted his statement on 21/11/2012 by alleging that he was tortured and forced to make submissions. The said allegations made by Shri Antony Morris were found to be false by the Deputy Director, DRI, Cochin. 7. Thereafter the statements of various persons were recorded. In the subsequent statements, no deponents had named the appellant, and as such, the same are not being reproduced here, as the Revenue s case .....

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s whereas the offence had actually taken place in November 2012; that he has got nothing to do with the red sander logs seized by the Revenue; that the proposal to impose penalty upon him is only on the basis of the retracted statement of Shri Antony Morris which cannot be held to be a sufficient evidence against him, in the absence of any corroborative material; that none of the accused in their statements had assigned any role to the appellant except Shri Antony Morris; that sharing of the cal .....

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8. While dealing with the said submissions of the appellant, the Commissioner in his impugned order observed that as per the statement of Shri Antony Morris, it was the appellant, who introduced him to Shri Moideen, who in turn introduced him to Shri Kannan. As such, he concluded that the appellant provided the ring with 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 .....

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f 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 .....

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ffence but also continued to be there even later to the commission of offence and till date. Assuming for the purpose of argument that appellant C.K. Kunhammed had entrusted the gold biscuits in a foreign country, Doha that would not be an offence coming within the mischief of the Customs Act, 1962. The provisions of the Act extend only to the whole of India and not beyond India. Apart from it, the Collector of Customs & Central Excise, Cochin also has no jurisdiction under law to try a pers .....

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ilar provisions are also available in Sections 3 and 4 of IPC whereas no such provision exists in the Customs Act, 1962. In the absence of any identical provisions in the Customs Act, the same cannot be invoked against a resident of a foreign country, even though an Indian. 9.3. As regards merits of the case, he submits that entire case of the Revenue is based upon the retracted statement of a co-accused Shri Antony Morris. There also he has simplicitor deposed that he was introduced to Shri Moi .....

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hri 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 reason .....

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shipping bill was filed by one Shri Yousef Moideen, Proprietor of M/s. Suweihan Exporting for export of goods to M/s. C.P. General Trading, LLC, Deira, Dubai. Admittedly, the shipping bill was not in the name of the appellant. The statements of Shri Yousef Moideen, Shri Kannan, Shri Prakash @ Senthil, Shri Suresh Kumar and the other persons recorded during the course of investigations have not named the appellant at any point of time. It is only Shri Antony Morris, in his statement recorded on .....

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h Shri Shafeek. It is a fact on record that Shri Moideen of Hongkong was untraced by the Customs authorities. In any case, we find that introduction of one person to another person who is subsequently found involved in illegal activities cannot be considered to be an offence so as to impose penalty upon him under the provisions of the Customs Act. 11.2. In any case, the statement of Shri Antony Morris does not inspire confidence inasmuch as at one place he had deposed that he knew Shri Shafeek f .....

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s only a mechanical retraction and as an afterthought, inasmuch as no force was used to obtain the same, we find that as per the settled law, statement of a co-accused cannot be held as sufficient to nail another person, unless there is an independent corroborative evidence to that effect. The adjudicating authority has nowhere doubted that the appellant was in Dubai during the period of seizure and had only visited India during the last week of July 2012. However he has relied upon the call dat .....

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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 ag .....

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