TMI Blog2016 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten by various persons including the Adjudicating authority and the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000. The contradiction in the statement of transporter of Appellant No.1 and the Driver Shri Jagroop Singh clearly brings out that entire story narrated by the Driver/Khalasi, in their statements recorded after interrogation for three days, is not entirely correct. It is now a well accepted legal principle that only a part of the statement, favorable to the department, cannot be considered as acceptable and that the entire statement has to be accepted or rejected. There is no other evidence that Betel Nuts seized were not obtained by the Appellant No.1 from legalized channels. Appellant No.1 has not given any confession statement at any stage. Reliance of third party statements without extending cross-examination is not acceptable as evidence when the entire facts of the statement are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. C-62/2011 Shri Dhrub Deb Dubey Prop. Of M/s.Rajasthan Assam Roadlines Rs.25,000/- of Penalty. 8. C-63/2011 Shri Maqsood Alam P.O.Kuwari Araria Rs.25,000/- of Penalty. 2. Shri Arijit Chakraborty (Advocate) appearing on behalf of the Appellant argued that 14.7 MT of Betel Nuts of third country origin(valued at ₹ 14.70 Lakh) were seized on 16.05.2008 by the Officers of DRI at a place named Rampur on Araria-Purnea National Highway from a truck bearing Registration No.RJ-14-2G-4000 on the basis of specific information. That the truck, valued at ₹ 3,75,000/-, in which the Betel Nuts were loaded, was also seized. On preliminary enquiry the driver and khalasi of the truck stated that the consignment was brought from Kuwari and that the documents for the consignment were given to them by another person in an envelop. That as per the documents contained in the envelop 15,000 kgs. of Betel Nuts (187) bags were consigned to M/s.R.K.Enterprises, Kanpur by one M/s.Bahubali Attraction Pvt.Ltd., from Kolkata. Driver of the truck Shri Jagroop Singh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... origin. (ii) That statement of Driver Shri Jagroop Singh and the Khalasi Shri Anil Sharma clearly implicate that goods were loaded at a place different from Kolkata and that they had never gone to Kolkata. (iii) That Truck No.RJ-14-2G-4000 never crossed Sales Tax Check Post, Dalkola during the period 01.05.2008 to 16.05.2008 as confirmed by Check Post authorities. (iv) That both the Appellants M/s.Bahubali Attraction Pvt.Ltd. and M/s.R.K.Enterprises disowned Betel Nuts of truck No.RJ-14-2G-4000. (v) That no payment to M/s.NCCF has been made by Appellant M/s.Bahubali Attraction Pvt.Ltd. through Drafts/Cheques. 2.2 With respect to findings of first appellate authority on 2.1 (i) learned Advocate had no objection because according to the appellant No.1 the confiscated Betel Nuts, purchased through NCCF Co-operative Societies, were also of foreign origin. On the point of reliance placed by Revenue on the statements of Driver and Khalasi it was argued that these persons were detained by DRI on 17th, 18th 19th to record a two page statement. That based on two statements above, which have also been negated by appellants, who get implicated by the Driver and Kh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Ltd. v. UOI [2006 (204) 564 (P H) (v) CC (Prev.) v. Mahendra Singh Purohit [2008 (225) ELT 426(Bom.)] (vi) CCE C, Nashik v. Krishna Filaments Ltd. [2008 (225) ELT 427(Bom.)] (vii) CC (Prev.), Mumbai v. Aakash Enterprises [2006 (205)ELT 23(Bom.)] (viii) CCE v. Gupta Steel [2006 (205) ELT 24 (Guj.)] (ix) CC(Prev.), Mumbai v. Shri Ganesh Enterprises [2006 (199) ELT 208 (Bom.)] (x) Topland Enginees Pvt.Ltd. v. UOI [2006 (199) ELT 209(Guj.)] (xi) Lakhi Nath Rai v. CC, Patna [2003 (159) ELT 662 (Tri.-Kolkata)] (xii) Laxmi Narayan Sharma v. CC, Patna [2002 (142) ELT 74 (Tri.-Kol)] (xiii) Raj Kumar Keshari v. CC(Prev.), Calcutta [2001 (136) ELT 745(Tri-Kolkata)] (xiv) Kukil Das v. CC, Patna [2004 (174)ELT 345(Tri.-Kolkata)] (xv) CC, Patna v. Dwarika Prasad Agarwal [2012 (275) ELT 183(Pat.)] (xvi) CC(Prev.), W.B., Kolkata v. Sudhir Saha [2004 (172) ELT 26(Cal.)] (xvii) Sonali Traders v. CC, Allahabad [2013 (298) ELT 302 (Tri.-Del.)] (xviii) Krishna Das v. CC, Lucknow [2014 (303) ELT 548(Tri.-Del.)] (xix) Directorate of Revenue Intelligence v. Moni [2010 (252) ELT 57 (Del.)] 2.4 That his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Driver/Owner Shri Jagroop Singh in Rajasthan.:- Sl. No. Written as Page No. of Appeal Memo Written by 1 RJ-142-G-4000 120 Adjudicating authority in Order-in-Original dated 30.04.2010. 2. RJ-14/2G-4000 125 Advocate of Appellant No.1. 3. -do- 126 Advocate of M/s.R.K.Enterprises, Kanpur. 4. RJ-142G-4000 129 Advocate of Driver/owner and Khalasi 5. RJ-142J-4000 130 -do- 6. RJ-14-2G 138 Para 4.1 of Order-in-Original dated 30.04.10. 7. RJ-2G-4000 139 Discussions findings of Adjudication authority (30.04.2010) 8. RJ-14-26 173 Discussions findings of Order-in-Appeal dated 25.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of appeal also it has been taken that digits 14 not getting mentioned in the transport documents was a clerical omission. The argument taken by Appellant No.1 has some weight because truck registration number must have been communicated through phone/mobiles where some digits can get omitted. Such an omission is plausible in view of the omissions indicated in para 4 above, where inspite of truck No.RJ-14-2G-4000 being as record, a different number is written by various persons including the Adjudicating authority and the first appellate authority. The first two alphabets of a vehicle registration number indicate the state of registration. The next two digits represent the Area/District of the vehicle registration authority. Therefore Bench is of the considered opinion that vehicle No.RG-2G-4000 is not the complete registration number of a vehicle and could be same as RG-14-2G-4000. 4.2 It is also the case of appellant No.1 that vehicles not having permit to enter West Bengal actually enter Kolkata also by adopting unfair practices. Presuming the argument of the Appellant to be true, the Driver of such a vehicle, having entered in the state of West Bengal (Kolkata) and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vikas Mohan Singhal v. D.R.I. Crl.M.C. 1815/2005 decided on 12-8-2009 [2009 (243) E.L.T. 507 (Del.)] has taken a consistent view that if the case of the prosecution whether launched by Custom Authorities, FERA Authorites or by Directorate of Revenue Intelligence is solely based upon the statement of the accused recorded by the Department pursuant to issuance of a notice given by them only, which stands retracted and there is no corroboration of the same, then the said statement cannot be the basis of conviction of the accused whether it is a statement recorded under Section 40 of the Foreign Exchange Regulation Act or under Section 67 of the NDPS Act or under Section 108 of the Customs Act. In this case Appellant No.1 has not given any confession statement at any stage. Reliance of third party statements without extending cross-examination is not acceptable as evidence when the entire facts of the statement are not true. Minor procedural irregularities in the documents produced by the Appellant No.1 cannot be considered sufficient to hold that Betel Nuts seized were different than the Betel Nuts procured by Appellant No.1 and were of smuggled nature. In view of the above obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
