Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (10) TMI 64

..... were also clearing the same - impugned goods were exported - Goods not available for confiscation - imposition of redemption fine and penalty. HELD THAT:- The payment alleged to have been received by Appellant on account of export goods is also based merely upon hearsay. None of the payments could be linked to the Appellant Shri Sanjay. It is only statement of persons that payments were received on account of Sanjay but no other details are forthcoming as to how the same were related to Shri Sanjay. No person would permit any other person to receive payment in his account unless he is sure of any legal transaction. I also find that none of the buyers of the goods has been identified. No consignment alleged to have been exported has been brought on record. It is not appearing when the goods were exported, what mode of transportation was made, no shipping or airway bill linking with alleged exports is on record. There is no evidence as to how the Appellant paid for alleged receipt of Ketamine to the supplier. Shri Jayesh Vadaliya was not made even noticee even though he was the person alleged to be taking delivery of Ketamine and forwarding the same in name of fictitious firms. The m .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... o him by a unknown person of Shri Sanjaybhai. He also stated that in past also he has taken delivery of consignments from Chaudhary Roadways. That in case of present parcel, he was told to rebook the same parcel in Surat-Ahmedabad Transport Co. GIDC, Vapi and handover invoice of M/s J.B. Enterprise to the transport company. Residential premises of Shri Sanjaybhai and his office premises were also searched but no incriminating papers were found. The test examination of samples revealed that the goods were Ketamine Hydrchloride whose export requires No Objection Certificate from the Narcotics Commissioner. Statement of Shri Nandkishore Rupchand Choudhary, Proprietor of M/s Choudhary Roadways was also recorded who stated that in past six consignments of M/s Perfect Chemicals were transported by them. Earlier consignments were also collected by Shri Jayeshbhai Chunibhai Vadaliya. Statement of Aurangabad Branch incharge of M/s Choudhary Roadways Shri Rameshwar Amarsingh Takale was also recorded wherein he stated that they do not know the Appellant or the whereabouts of Perfect Chemicals. The address of Bhatia Chemicals and J.B. Chemicals were also found to be bogus. The goods from Auarn .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... de and to which country or atleast the dates on such exports were made. The adjudicating authority has not taken into consideration the retraction of statements before the Jailor which was submitted before Chief Judicial magistrate on 04.07.2009. The emails relied upon by the revenue was collected from unknown source which were not provided by the Appellants nor they had any relation with any company. They have no business relation with Shri Jayesh who had gone to the transporter to collect the goods nor had asked him to take delivery. No incriminating documents were found from any of the premises relatable to them. They never claimed ownership of 25 Kgs of Ketamine seized from Chaoudhary Roadways. The person Shri Jayesh who was caught dealing with said consignment was not even issued show cause notice and was set free. He point out the discrepancy in statement of Shri Jayesh. That in his statement dt. 06.03.2009 he stated that he was given lorry receipt by unknown person but in his statement dt. 11.08.2009, he stated that the lorry receipt was given to him by Shri Sanjay at his office. Shri Jayesh had been misguiding the officers by giving vague statements. He submits that neither .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... . The order has been passed by relying upon the hearsay based on statements and not on any evidences or any report from the foreign countries where the goods were alleged to have been sent. The adjudicating authority has relied upon emails and computer printouts but the Appellant has denied that the emails belong to them, The appellant never has taken any amount from Vijaybhai of Rajkot who in his statement that he had withdrawn amt from Western Union Bank and handed over to Appellant. That the procedure given under Section 138 C of the Customs Act was not followed for taking printouts as evidence. None of the condition given in Section 138 (2) was followed. There is no certificate from person who had operated and was in incharge of the computer. The entire allegations are based on statements which were taken under duress and later retracted and secondly on various printouts of courier agencies, Western Union Money changers and many other without any corroborative evidences. It is nowhere appearing how the goods were obtained by Appellant, transported, packed in which export consignment it was misdeclared and exported. They were made to sign the statements and on coming to know abo .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ya or the courier companies or the persons who received the money in their account on such sale, but nowhere it is appearing as to when the goods were exported by Appellant. Even after investigation at courier company, there is no findings as what is the mode of export and to which country the exports were made. It is alleged that the Appellant had received 165 Kgs of Ketamine in past. The show cause notice alleges that the goods were sent by Shri Rajesh Joshi to Shri Sanjay and that Shri Rajesh Joshi was introduced to Shri Sanjay by Shri Nagesh Barsale. Shri Rajesh Joshi who has allegedly supplied such goods cannot be even traced by the investigating officers inspite of the fact that Shri Nagesh Barsale was knowing him. The Appellant has agitated the allegation of receipt of impugned goods. It is also a fact that neither the Incharge of Choudhary Roadways at Surat nor Shri Choudhary at Vapi knows Shri Sanjay. In such a case it was necessary to find the source who had supplied the alleged quantity to the Appellant. Only on the basis of statement of Shri Jayesh it cannot be concluded that he had collected the ketamine consignments from transporter on behalf of Appellant. The supplie .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... d how the Appellant dealt with the impugned goods in transporting, packing the export consignments. In such case we find that only on the basis of statements, it cannot be concluded that the Appellant had exported 165 Kgs of Ketmaine HCL. As regard 25 kgs of Ketamine seized from Choudhary transport I find that no evidence has been brought on record to show that the Appellant was attempting to export the same. No evidence of Appellant having in contact with any foreign buyer for export of said quantity is on record. No export documents were prepared or no shipping bill airway bill was prepared. In such case it cannot be said that the Appellant was attempting to export the goods. my view is also based upon the judgment in case of Ranjit Export Pvt. Ltd. 1985 (21) ELT 353 (Mad.). Similar view has been taken in orders in case of Kashmiri Vs. Collector 1991 (57) ELT 284 (TRI), Sripar Upadhyay 2001 (138) ELT 768, Suresh Jhunjhunwala 2005 (183) ELT 60 (CESTAT), Bhanbhai Khalpabhai Patel 1987 (28) ELT 489, K. Baburao & Othrs 1986 (26) ELT 766. 6. In view of my above findings I hold that the Appellants cannot be accused of export of 165 Kgs of Ketmaine HCL or of attempt to export 25 Kgs .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||