TMI Blog2022 (12) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... made under Section 108 of the Act 1962 should not and cannot be construed as a statement of a co-accused, for when a Customs Officer records a statement under that sections of the Act, he does not act as a Police Officer, but he merely acts as a Revenue Officer, whose duty is to find out whether or not there is an evasion of customs duty in a particular transaction. The statements made by Suresh Prabhu should be considered not as a confessional statement of a co-accused, but as an independent piece of evidence. It is thus evident from his statements that the respondent was involved in the offence. Hence the contention of Shri Phanindra that other independent evidence is required, is untenable and liable to be rejected. Whether the Tribunal was justified in dropping the penalty? - HELD THAT:- The findings of the DRI and statement made by the co-noticees, it is clear that the respondent had received and made payments for the illegal exports. Without his involvement, the chain of circumstances leading to the commission offence would be incomplete. In our view, respondent has aided in making remittance from Dubai which amounts to abetment. Thus, Respondent has played a major ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported 21 consignments of ladies garments during August 2007 and May 2009, through New Mangaluru Port to Dubai. According to the Revenue, the Garments were made of inferior quality fabric but, declared to be made of Corduroy/Denim/Viscose fabric to fraudulently avail duty free import credit. The exporter had falsely claimed fulfillment of export obligation against the corresponding DFIA Scrips obtained by making fraudulent exports. Based on the Intelligence, DRI (Directorate of Revenue Intelligence) conducted investigation and a show cause notice dated 02.11.2010 was issued calling upon the Proprietor of SLN to show cause as to why the goods declared having FOB value of Rs.16,07,44,035/- should not be rejected and the value of said goods should not be re-determined at Rs.2,97,93,000/-. The DRI also issued a show cause notice to the respondent herein to show cause as to why penalty should not be imposed on him under Section 114(iii) of the Customs Act, 1962 for his acts and omissions which had rendered the exported goods liable for confiscation under Section 113(h) and Section 113(i) of the Act read with other relevant provisions. 4. The Commissioner of Customs, Mangaluru ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of illegal activities in India. The authority in C.K. Kunhammad Vs. CCE (1992) 62 ELT 146 relied upon by the CESTAT, is not applicable to the case on hand; respondent did not respond to the summons and has been absconding; his statements could not be recorded. He is the henchman of Suresh Prabhu and has arranged for sending money illegally from Dubai to India under the cover of subject exports of M/s SLN by way of inward remittances from certain Dubai based parties who are neither consignees nor buyers for the subject export goods. The Respondent conspired in the illegal exports of mis-declared goods by making full payment of the inflated value and then recovering the excess payment through hawala mode; the mens rea in the case is proved beyond doubt and the respondent s abetment in the offence has been proved in depth. Respondent cannot take a plea that he was not involved in the illicit exports since he was away from the country, in as much as, he has been hiding abroad and failed to honor the summons issued by the investigating agency. With these submissions learned ASG prayed for allowing this appeal. 8. In substance, the learned ASG's argument is, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equisition for attendance under this section. (4) xxx 13. In Romesh Chandra Mehta Vs. State of West Bengal 1970 AIR 940 ., it is held that a Customs Officer under the Act is not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act. It is further held that a statement under Section 108 of the Act is not a statement made by a person accused of an offence, and the person who gives the statement does not stand in the character of an accused person. 14. Thus, it is clear that the statements of a person made under Section 108 of the Act 1962 should not and cannot be construed as a statement of a co-accused, for when a Customs Officer records a statement under that sections of the Act, he does not act as a Police Officer, but he merely acts as a Revenue Officer, whose duty is to find out whether or not there is an evasion of customs duty in a particular transaction. 15. The fine difference in a statement made by a person before a Customs Officer under Section 108, who is subsequently made an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered not as a confessional statement of a co-accused, but as an independent piece of evidence. It is thus evident from his statements that the respondent was involved in the offence. Hence the contention of Shri Phanindra that other independent evidence is required, is untenable and liable to be rejected. Re: Question No. 2: 21. The question involved is whether the Tribunal was justified in dropping the penalty. 22. Section 114 of the Customs Act, 1962 reads thus: Penalty for attempt to export goods improperly, etc.- Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, to a penalty [not exceeding the duty sought to be evaded or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, coupled with the statement of Kishori Lal is sufficient to prove the complicity of the appellant in evasion of customs duty. (Emphasis Supplied) 26. Feroz Khan in his statement dated October 01, 2009, given before the officers of DRI, has admitted that the respondent is also involved in sending money through SLN Account. 27. In para 9 of its OIO (OIO - Order-in-Original) No. 29/2014 the DRI has recorded thus: 9.3. From these, it is now established that M/s SLN Overseas Traders exported overvalued garments to Dubai for which remittance was received through Shri. Feroz Khan/ M/s East West Tourist Corporation. As admitted by both, Shri. Suresh Prabhu and Shri Feroz Khan, the cousin of Shri. Feroz Khan- Shri. Imtiaz Ahmed was involved in remittance from Dubai. In these transactions only two parties are involved- one party is the giver (Shri. Imtiaz Ahmed) and the other parties are the receivers (Shri. Feroz Khan and M/s SLN) 28. From the above findings of the DRI and statement made by the co-noticees, it is clear that the respondent had received and made payments for the illegal exports. Without his involvement, the chain of circumstances leading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa. (Emphasis Supplied) 36. In Maqsood Yusuf Merchant Vs. Union of India (2008) 103 DRJ 634, para 13., the Delhi High Court has observed thus: 13. Once it is found that the offence has been committed, or a violation of the Customs Act has been perpetrated in India, persons who have abetted in the perpetration of this violation would ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter, be deemed to be the owner, importer or exporter of such goods for such purposes including liability therefore under this Act. 40. Records of this case disclose that respondent was functioning in India through his agent who used to collect money by showing a currency note of a specified number to Suresh Prabhu. Therefore, the provisions of Section 147 would apply in this case in full force. 41. Further, Halsbury s law of England III Ed., Vol 10, pg. 327, para 602. states that: A criminal enterprise may consist of a continuing act which is done in more places than one or of a series of acts which are done in several places. In such cases, though there is one criminal enterprise, there may be several crimes; and a crime is committed in each place where a complete criminal act is performed, although the act may be only a part of the enterprise. 42. In the instant case, as per the statements of Suresh Prabhu, payments were sent to India by respondent and excess payment was also collected by him through people known to him. The illegal goods were detained in the Mangalore port. A major part of the offence has taken place in India. Therefore, in our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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