TMI Blog2016 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... on the gypsum boards was sufficient a proof which could be instrumental to trace the appellant. It is also settled principle of law that even if the confession is retracted the time within which such retraction has been made and the veracity of the retraction play a vital role for believability thereof. Confession binds the author and against whom the deposition has been made. The contravention of law and the offence committed in the organized manner was under absolute secrecy which was proved from the discovery of red sander from the cavity made in the gypsum board to hide the same. If the appellant is granted any leniency, that shall be bonus to smuggling. So also unchecked smuggling when upsets the economy, appellant fails to deserve any leniency. All these can be said following the principles of law laid down in the case of KI Pahavunny Vs. Assistant Collector (HQ), CX, Collectorate of Cochin [1997 (2) TMI 97 - SUPREME COURT OF INDIA]. The evidence on record having probative value it is the objective evaluation thereof applying relevant test, finding has been reached. There is neither any surmise nor suspicion that can be attributed to investigation. They made their story v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.C/26/2008 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai is set aside and Appeal No.C/26/2008 is remitted to the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai and the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai is strictly directed to consider the factual aspects putforth on either side and also consider recent decisions rendered by the Hon ble Apex Court and pass suitable orders on merits. Consequently, connected Miscellaneous Petition is dismissed. 2.0 In pursuance to the above directions of the Hon'ble High Court the appeal was heard and proceeding was recorded on 22.2.2016. 3.0 Investigation made allegation against the appellant noticing him to be involved with one Alexander in the attempted export of red sander covered by the impugned order. Summary of allegations was as under: 3.1 Shri John Alexander residing at No 75, Third Street, North Balabagya Nagar, Thatchanallur Road, Tirunelveli was the proprietor of M/s Freedom Impex. During March 2006 he attempted to export red sanders to Malaysia receiving that form one Manivannan. During 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orin Custom House on self assessment basis declaring that 104 crates of gypsum boards meant for export to Malaysia by M/s Freedom Impex, Tuticorin. Cargo was examined by Customs at M/s Raja Agencies CFS on 24.03.2006 and let export order was given.But such cargo was intercepted by DRI and they examined the contents thereof thoroughly. Upon such examination, 1500 pieces of Red Sanders were found to have been concealed in 94 packages of Gypsum boards. So also investigation found few Gypsum boards without concealing red sanders and some packing material weighing 6.318 MT were in the cargo. 3.6 Investigation found that above said preparations were made to commit attempt to export the red sanders of aforesaid description by Alexander under the instructions of the Appellant. Such goods are prohibited goods rendering that liable to confiscation under Section 114 (d), 113(e), 113(h) and 114(i) of the Customs Act, 1962. The gypsums board and other packing material having been used as cover in the cargo to conceal the offending goods (Red Sanders) were also liable to confiscation under section 119 of the Customs Act, 1962. For such act of attempt to export prohibited goods penalty proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24.3.2006 with Tuticorin Custom House declaring 104 crates of gypsum boards were being exported to the address of the buyer in Malaysia given by Shri Manivannan; (x) the detailed examination conducted by the investigating officers at Raja Agency CFS found 1500 Nos. of red sander in three shapes weighing 1.650 MT were attempted to be exported in the guise of gypsum boards used for concealment and those boards were also seized; (xi) he knew that export of red sanders is an offence under the Customs Act; (xii) he confirmed the photograph shown to him by investigation was of Shri Manivannan of Perambur, Chennai, and admitted the Offence committed by him. All such depositions remained uncontroverted. 4.3 Adjudicating Authority found that John Alexander had a unit called M/s. Gilpa Agencies at Tuticorin. During February, 1997, when he attempted to export sandalwood sent by Shri Santhanameeran from Chennai, that was detected by the Customs and he was penalised by an amount of ₹ 10 lakh. 4.4 Adjudication also observed that Shri T. Manivannan (Appellant), who was the Proprietor of M/s. N.K.R. Corporation, in Chennai sent Red Sanders(a prohibited item for export under the EXIM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.03.06 Statement under section 108 of the Customs Act, 1962 recorded from John Alexander * He details how came into contact with Appellant Mannivannan * How Mannivannan sent a contraband. * What was the remuneration given by Appellant for the work. He states that the total remuneration was ₹ 2 lakhs out of which Manivannan sent ₹ 40,000/- through a person who came with the Red Sanders in the Lorry and Manivannan deposited 60,000 into ICICI Bank Account No.613905014790 of his (not verified nor investigatged). * He had paid ₹ 1 lakh earlier (not verified). * The buyers addressed at Malaysia were sent through KPN Bus Courier (not verified). * Earlier to the present consignment, a test consignment of smaller lot sent under Shipping Bill No.1581521 dated 02.03.2006. Not verified . * The buyer is one FG Global resources (no verification). * He implicates Manivannan stating that he had supplied that he had supplied the contraband and is residing at Perambur High Road having a Government manufacturing factory. He also states that he does not know the contact phone number of Manivannan. 54-61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther statement recorded from John Alexander at Central Jail, Madurai. He reiterates statement dated 26.03.06 and identifies one Computer generated printout claim to be the photo of Appellant. 94-96 16 19.06.06 Third statement recorded from the Appellant. It is one of denial. 98-99 17 19.06.06 The Appellant arrested and remanded to judicial custody. 100 18 23.06.06 Bail Application of Appellant. 111-113 19 04.07.06 The Appellant detained under COFEPOSA and his detention is challenged by filling Habeas Corpus Petition in High Court, Madurai Bench 114-129 20 25.09.06 High Court disposes of the above petition stating that the detention of the Appellant has since been revoked by the State Government on the basis of the report Advisory Board. 130-132 21 13.09.06 Show Cause Notice issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing two questions for answer and such questionsfind place in para 4 of the order of the Hon ble court passed on 31.01.2014:- (a) Whether the 1st Respondent Tribunal as a final fact finding body ought to have asked for corroboration on material particulars in the statement of co-accused John Alexander by independent evidence/material so as to rely on the same for suspending the penal liability against the appellant? (b) Whether the 1st Respondent Tribunal has committed an error or jurisdiction in not even adverting to or evaluating the intrinsic worth of the exculpatory statements of the Appellant, which are on record in juxtaposition to the so called confessional and voluntary statements of the said John Alexander? 5.2 Further submission on behalf of appellant was that the statement of the co-accused was derived under duress,stress and strain during his detention initially by DRI and thereafter under COFEPOSA. That does not lend any credence to frame charge against the appellantbeing recorded during detention. Tribunal in earlier occasion did not find any hard evidence to inculpate the appellant for which the Honble High Court hasdirected it to examine as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 309 (S.C.). (ii) Vinod Solanki Vs Union of India reported in 2009 (233) E.L.T.157 (S.C.). (iii) Santosh Pandurang Patil Vs Commissioner of Customs, Tuticorin reported in 2009 (234) E.L.T.455 (Tri.-Chennai). (iv) Commissioner of Customs (Imports),Chennai-I Vs Sainul Abideen Neelam reported in 2014 (300) E.L.T.342 [Mad.]. (v) Shri Vinod Kumar Jatia Vs Union of India reported in 2014 (303) E.L.T. 532 (Del.). (vi) Ashwini Kumar Tandon Vs Commissioner of Customs (Preventive) reported in 2014 (305) E.L.T.350 (Bom.). (vii) A. Tajudeen Vs Union of India reported in 2015 (317) E.L.T.177 (S.C.). 5.6 Inviting attention to dismissal order in CMA No.1920 of 2011 passed by Hon ble High Court of Madras in the case of Sushil Kumar Kanodia Vs Commissioner of Customs, Chennai reported in 2007 (218) E.L.T.453 (Tri.-Chennai)learned counsel says that Revenue has no case. He placed further reliance on Santosh Pandurang Patil Vs Commissioner of Customs, Tuticorinreported in 2014 (300) E.L.T.342 [Mad.], which was followed by High Court of Madras in Commissioner of Customs (Imports), Chennai-I Vs SainulAbideen Neelam reported in 2014 (300) E.L.T.342 (Mad.)for defence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpex from Tuticorin filing Shipping Bill No.1590098, dated 24.03.2006. Investigation found that such offending goods were attempted to be exported deliberately misdeclaring as gypsum board.Recovery of the offending goods remained uncontroverted. 7.2 When John Alexander disclosed the source of receipt of the offending goods in his statement that was not discarded by appellant leading any cogent evidence. He did not name the appellant out of hostility or for the sake of naming him to escape Investigation. Investigation discharged its burden of proof proving the case form the stage of discovery of the red sander sent by the appellant till discovery thereof from the cavity of the gypsum board sent by appellant to Alexander. Accordingly appellants involvement in the smuggling of redsander was alleged. 7.3 Alexander appeared to be man of no means and was not in position to make heavy investment in procurement of the offending goods. Therefore he acted only as a conduit of the appellant to export the same for a consideration of ₹ 2.00 lakhs. Except plea of no proof of bank account showing deposit of ₹ 60,000/- (part of the consideration) not verified by Customs, appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the loss. Accordingly he had exported Red Sanders in the name of M/s. N.K.R. Corporation from Chennai Port in the past. He also failed to rule out his intimacy with John Alexander of Tuticorin. Even though he attempted to detach himself in his statement from the attempted export of offending goods, he failed when entire governing facts and attendant circumstances imputed him to charge. He refused to reply on the statement of John Alexander recorded in the Central Prison of Madurai on 19.06.2006 apprehending his guilt. He was also arrested on 19.06.2006 under COFEPOSA for the offence of attempt to export the Red Sanders. 7.7 In the course of hearing of the appeal, innocence of the appellant could not be established except technical plea of no proof of money trail raised, confessional statement of coaccused not usable and exculpatory statement of appellant is credible. No doubt, John Alexander was co-accused and his statement was used against the appellant. But his statement was so credible and believable being recorded before the jail authority, contents thereof were not baseless. Accordingly his truthful statement cannot be brushed aside when nothing was retracted before Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 8.1 Procurement of red sander was not possible on the part of Alexander due to his unsound financial position which came to record. The appellant only made the procurement successful for his ill gain and employed Alexander as his conduit for export thereof. Attempt to export was made with hand in glove. Secrecy and stealth being covering guards of ill designed act, it is normally a hard task for Revenue to unravel every link of the process. However Revenue could successfully place circumstantial corroborative evidence to discard innocence of the appellant who proved his malafide submitting himself to the attempted export of prohibited goods. 8.2 Many facts relating to the ill design remain in the special or peculiar knowledge of the persons concerned with that. Adjudicating Authority did not adjudicate the matter on any sole consideration, but several considerations, governing facts and attendant circumstances were basis of the adjudication. Echoing evidence, series of factors and several circumstances were determinative. Conduct of the appellant was questionable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to keep an advantage which he obtained by fraud. 8.5 When the material evidence established fraud against Revenue, white collar crimes committed under absolute secrecy shall not be exonerated from penal consequence of law following Apex Court judgment in the case of K. I. Pavunny v. AC, Cochin - 1997 (90) E.L.T. 241 (S.C.). Various technicalities raised by appellant in the course of appeal hearing did not matter when substance of the matter weighed heavily for determination of the issues involved. 8.6 An act of fraud on Revenue is always viewed seriously. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It has been held by Apex Court in the case of Commissioner of Customs, Kandla v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) that by fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immateri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpeach the conduct of the appellant demonstrating his involvement with his past record of involvement in smuggling. 9.1 Reliance of the appellant on the decision of the Hon ble Supreme Court in the case of Vinod Solanki Vs. Union of India - 2009 (233) ELT 157 (SC)was placed to submit that the evidence recorded from Manivannan forcibly does not stand to speak against the appellant. There is no proof this proposition. Alexander was not at all under any pressure, undue influence or coercion to depose before customs officers. His statements were so clear that indicated his refreshed mind at all times of deposition. No doubt, presumption of innocence is a human right for the appellant but that is not a fundamental right. He being contributory to Alexanders involvement paying him a remuneration to smuggle red sanders, he failed to prove to be an innocent. Rather he was mastermind to send gypsum board for concealing red sanders and attempt to export the same to the consignee in Malaysia who was known to appellant. 9.2 Further reliance of the appellant in the case of Santosh Pandurang Patil Vs. Commissioner of Customs - 2009 (234) ELT 455 (Tribunal) was made to submit that penalty c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Appellant further relied on the decision of the Hon ble High Court of Bombay in the case of Ashwini Kumar Tandon Vs. Commissioner of Customs - 2014 (305) ELT 350 (Bom.) to submit that the confession of the co-accused is not substantive evidence. As has been stated earlier, the confessional statement of the co-accused was not extracted forcibly but was voluntary and that showed light as to origin and destination of offending goods and the other accompanying goods (gypsum board) used as a means to conceal the same in the cavity made therein. Nowhere Alexander made a complaint as to his mental torture or harassment even when he was produced before the Magisterial Court under COFEPOSA. Therefore, his evidence cannot be mutilated for the pleasure of the appellant to claim innocence. He was not an innocent. But an investor of offending goods. 9.6 Appellant further relied on the decision of the Apex Court in the case of A. Tajuden Vs. Union of India - 2015 (317) ELT 177 (SC) to submit that mere oral statement of Alexander, not corroborated by any documentary evidence shall not implicate the appellant. It may be stated that the offending goods arrived from a different destination to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was not ruled out by him since Alexander became abettor for export of his goods. Commitment of the attempt to export red sanders out of India was the perpetrated design of appellant who provided the address of the importer. 10.2 The statement made by Alexander inculpating the appellant could be used against him as substantive evidence following the ratio laid down by the Honble Supreme Court in the case of Naresh J Sukhawani Vs. Union of India 1996 (83) ELT 258 (SC). The 108 statement resulted in confiscation of the red sanders discovered from the cavity on the gypsum boards was sufficient a proof which could be instrumental to trace the appellant. It is also settled principle of law that even if the confession is retracted the time within which such retraction has been made and the veracity of the retraction play a vital role for believability thereof. Confession binds the author and against whom the deposition has been made. 11.0 The contravention of law and the offence committed in the organized manner aforesaid was under absolute secrecy which was proved from the discovery of the red sander from the cavity made in the gypsum board to hide the same. If the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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