TMI Blog2016 (3) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... rts of SLN. Whether or not the appellant is a cousin brother of Feroze Khan is wholly immaterial in absence of any tangible material against the appellant and also there is no tangible evidence of any compensatory payment either by SLN or by Feroze Khan, to the appellant. Therefore as the department has failed to prove that the appellant is not innocent, the charge against the appellant is baseless and the penalty imposed on the appellant is not sustainable. - Decided in favour of appellant with consequential relief - C/20334/2015-DB - Final Order No. 20056 / 2016 - Dated:- 11-1-2016 - SHRI M.V.RAVINDRAN, JUDICIAL MEMBER AND SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. Kanan B. Adv For the Respondent : Mr. Ajay Saxena, A.R. ORDER PER : M.V.RAVINDRAN The instant appeal challenges the impugned Order-in-Original dated 19.11.2014 passed in de novo adjudication by the Adjudicating Authority, whereby a penalty of ₹ 2 crores has been imposed on the Appellant under Section 114(iii) of the Customs Act, 1962. The charge against the appellant is of abetting in smuggling of goods exported by S.L.N. Overseas, a proprietorship firm of Shri Shu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overing the same by instructing certain individuals to collect specified amounts in India. 3.3 One Shri Feroz Khan also gave confessions. He stated that that pre-signed blank cheques were given to him by the said Shri Suresh Prabhu, so that, as and when required, money can be withdrawn and that whenever required, he used to fill up the cheques, and used to present the cheques and collect the amount through his employee or his relatives working under his instructions. Whenever money was received in the account of SLN, the said Shri Suresh Prabhu informed him, and accordingly he filled up the details and withdrew the amounts. After collecting the amount, he used to keep his commission and to distribute the remaining to the persons recommended by the said Shri Suresh Prabhu or one Shri Jaffar, as the case may be. He used to receive a call from the said Shri Jaffar from Dubai, whenever money was sent to the account of SLN, who informed him the amount to be withdrawn out of the amount remitted, which information was counter checked and reconfirmed by the said Shri Suresh Prabhu. After having said so, said Shri Feroz Khan further stated that the Appellant herein is also involved in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to confiscation under section 113(h) and 113(i) of the Customs Act, 1962 read with Section 11 of the Customs Act, 1962 and Section 11 of FTDR Act, 1992 and Rule 11, Rule 14(1) and Rule 14(2) of the FTR Rules, 1993. 3.7 The Appellant replied to the show Cause Notice. In his reply dated 23.02.2011, the appellant, inter alia, sought personal hearing requesting that the IO be present for cross examination during the same. Leave was sought to file detailed/additional reply after the cross examination of the IO. 3.8 The said SCN was adjudicated by the Commissioner of Customs, New Custom House, Mangalore vide Order-in-Original (OIO) No. 08/2011-Commnr. dated 19/12/2011 and a penalty of ₹ 2,00,00,000/- (Rs. Two Crores only) was imposed on the appellant herein. Aggrieved by the said Order-in-Original, the appellant preferred an appeal no. C/670/2012 before this Tribunal. The said appeal was decided vide Final Order No. 20731/2014 dated 24-12-2013 and the above said OIO to the extent of imposing penalty of ₹ 2 crores on Shri Imtiaz Ahmed was set aside, and the matter was remanded to the adjudicating authority with a request to pass a fresh order after observing prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wholly without jurisdiction, and in direct contravention of the provisions of the Customs Act, 1962. This is contrary to law and cannot be countenanced inasmuch as the Appellant is a resident of Dubai and has been staying therein. During the relevant period, when the alleged exports were carried out by SLN, i.e., May 2007 to August 2009, and even thereafter the Appellant was not in India. Section 1(2) of the Customs Act, 1962 clearly indicates that the said Act extends only to It extends to the whole of India. He relied on the decision in C.K. Kunhammed Vs. CCE, 1992 (62) ELT 146 (T). He also relied on a judgement dated 08.09.2015 of this Tribunal in C/20143/2015-DB in the matter of Shafeeq PK v. CC, Cochin, wherein apart from the other issues, even the aforesaid judgment in C.K. Kunhammed (supra) was followed. 4.2 On merits he submitted that the allegations against the Appellant in the Show Cause Notice dated 02.11.2010 are vague, not specific, lack details and are unintelligible and therefore no finding of guilt can be found against the Appellant, while relying on the judgment of Honble Apex Court in Commissioner of Central Excise, Bangalore v. Brindavan Beverages (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already culled out by us in the earlier paragraphs. He submitted that there was no impediment in invocation of penal provisions of Customs Act, 1962 against the appellant. A specific query was raised from the bench as to whether, barring the confessions of co-accused Shri Suresh Prabhu and Shri Feroze Khan, was there any documentary evidence or any other independent evidence against the appellant to establish any link of the Appellant to the entities who either received the exported goods and/or paid for them to establish his role of abetting in fraudulent exports by SLN. However, the Learned Departmental Representative could not show from records any such evidence. He heavily relied upon the confessions of the co-accused Shri Suresh Prabhu and Shri Feroze Khan, and reiterated the findings recorded by the adjudicating authority. 6. After carefully considering the records and submissions of both the sides we find that- 6.1 The issue before us in the instant appeal is limited to the sustainability of penalty imposed on the appellant in the facts of the case for alleged abetment in the case of fraudulent, overvalued and mis-declared exports by SLN. Neither the confiscation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping agent Blue Axis Shipping Freight LLC in Dubai asking for a Companys name to raise Bill of Lading for shipment of garments. Name of the consignee True Trade General Trading, Dubai was, in reply, provided by the said shipping agent, who also informed that for the said purpose, AED 500 + AED 250 for license (Total AED 750) was to be paid. Shipment was made to said True Trade General Trading, Dubai and payment against the said shipment was received from the unconnected firm Abdulla Ahmed Electronics allegedly linked to Haleema Babader Trading LLC, Dubai. Neither the name of the appellant is mentioned in these documentary evidences, nor is there any independent evidence of any connection of the appellant with the said Blue Axis Shipping Freight LLC, Abdulla Ahmed Electronics or Haleema Babader Trading LLC, Dubai. 6.5 It is not the case of the department in its show cause notice that any search operations carried out at known residential premises of the appellant within India, or at premises of co-accused in the case, led to recovery of any incriminating evidence whatsoever against the present appellant. Para 7.3 of the show cause notice shows that certain chits / sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the investigations as the appellant was in UAE during the material time. However, he had made communications to DRI from Dubai claiming that he was not concerned in any manner with the exports of SLN. Appellant has specifically stated in his earlier appeal at Page 123 of the paper book that- 21. The Respondent has failed to notice that the appellant had nothing to do with SLN Overseas in the matter of exports legally or illegally. Any action would have to be restricted to SLN Overseas only. In his preliminary reply dated 8.9.2014, the appellant categorically stated that- 2. At the first outset, our clients deny all the allegations made in the aforesaid SCN. 7. Our clients crave leave to file detailed reply after examination/cross examination of witness requested hereinabove. In the appeal before us it is specifically stated that- (G) THAT, there was failure to notice that the Appellant was residing abroad and the Respondent had no territorial jurisdiction to penalize him, inasmuch as it was beyond the scope under Customs Act in the facts of the case. In this connection, even as per the allegation the Appellant at time of export was based in Dubai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. In Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate Anr. [(2007) 8 SCC 254], this Court held: 15. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well-settled principle of law that a confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184; Haroon Haji Abdulla v. State of Maharashtra AIR 1968 SCC 832; and Prakash Kumar v. State of Gujarat (2007) 4 SCC 266]. 16. We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram (2006) 13 SCC 210, this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person in respect of something which was committed beyond India and in a foreign country which will not come within the mischief of the provisions of the Customs Act, 1962. The ratio laid down in the said judgment has been followed in a recent judgement dated 08.09.2015 by this Tribunal in C/20143/2015-DB in the matter of Shafeeq PK v. CC, Cochin. The aforesaid findings are squarely applicable in the allegations against the appellant herein who had been residing in UAE. Therefore, even on this sole ground the appellant is entitled to succeed. 10. Since the department has failed to prove that the appellant is not innocent, we do not find it necessary to go into the issue of non-compliance of the provisions of section 138B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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