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2019 (10) TMI 64

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..... 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 movement of goods for export is through courier firms but nowhere the clearance of goods exported were doubted even though the export goods are subjected to testing and examination and especially in case of drugs. It is also not on record as to when and 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. Seizure of 25 kgs of Ketamine - HELD 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 Appel .....

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..... yeshbhai 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 Auarngabad were consigned as describing them as Benzahydrol Powder but for onwards transportation were shown as Sodium Bisulfite in invoice of J. B . Chemicals. Shri Jayeshbhai in his further statement also stated that all the parcels belong to Appellants. Reliance was placed upon emails correspondence made on account of clearance of such goods in past with the foreign buyers. Also statement of authorised persons of courier companies who in past had consigned the goods were recorded wherein they stated that the export documents was provided by Shri Sanjay to him. Statement of one Shri Nagesh Barsale was also recorded who stated that he had introduced one Shri Rajesh Joshi to Shri Sanjay for supply of Ketamine and who in turn supplied the goods from Aurangabad to Shri Sanjay. Statement of Shri Sanjay was also recorded to the effect that they were indulge .....

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..... 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 Shri Rameshwar Amarsingh Takale, Incharge of Choudhary Roadways at Aurangabad from where the goods were consigned knew any of the Appellant nor Shri Nandkishore Chaoudhary, owner of Choudhary Roadway at Vapi where the goods were to be unloaded knew the Appellants. As per Shri Choudhary only Shri Jayesh collected goods. The lorry receipts of past consignments were whether of impugned goods or other goods was never brought on record. As regard payments received through Western Union he submits that none of the transactions were made by the Appellant and even the department has not shown any documents linking the Appellants to the same. The department has not produced any evidence when did the export of Ketamine consignment took place, under what mode of transport, by air/sea/land, under which shipping bill or airway bill and not a single consignment .....

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..... condly 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 about the contents of statement they retracted the same from jail. They do not even know the value of goods was arrived at. The penalty is not imposable on them. Even the seized goods were at the transporter premises and not at customs area. No attempt on the part of Appellant has been shown. He relies upon judgments in case of Amrit Bazar patrika 21 Cri. L.J. 98 : 54 Ind. Cases 578, Kashmiri Vs. Collector 1991 (57) ELT 284 (TRI), Sripar Upadhyay 2001 (138) ELT 768, Ranjit Export Pvt. Ltd. 1985 (21) ELT 353 (Mad), Suresh Jhunjhunwala 2005 (183) ELT 60 (CESTAT), Bhanbhai Khalpabhai Patel 1987 (28) ELT 489, K. Baburao & Othrs 1986 (26) ELT 766. 3. Shri T. K. Sikdar, Ld. AR appearing for the revenue submits that from the statement of Shri Jayesh it is absolutely clear that the Appellants were procuring the goods under fictitious firms name and were a .....

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..... 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 supplier of goods has not been found nor there is any evidence that the goods were intended for the Appellant. The Appellant Shri Sanjaybhai Manjibhai has retracted his statement from jail. His retraction cannot be brushed aside on the ground that same was delayed. It is obvious that when a person is in jail, it will take time from him to understand the charges or investigation being made against him and after being aware of the situation to retract the same. The fact remains that the retraction was made during investigation itself and hence the statements cannot be made sole basis to make charges against the Appellant. It is also on record that during investigation, no incriminating documents were found from the office of the Appellants. Further as pointed out by the ld. Counsel there has been contradiction in statements of Shri Jayesh Vadaliya. In his f .....

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