TMI Blog2023 (2) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the DRI dated 10.06.2019 and 11.06.2019 which were retracted by the Respondents on the first opportunity available on 12.06.2019 before the Ld.CMM, Kolkata, no other corroborative evidence has been brought on record. In that circumstances penalty on the Respondents are not imposable. In the case of Surjeet Singh Chhabra [ 1996 (10) TMI 106 - SUPREME COURT ] there was an evidence of recovery of gold in the possession of the accused apart from the statement recorded under Section 108 of the Customs Act, 1962. In that circumstances, the decision is not applicable. The Ld.Commissioner(Appeals) has rightly dropped the penalty against the Respondents as there is no corroborative evidence on record in support of the statement made before DRI Officers which were retracted on first available opportunity before the Ld.CMM and no cross-examination of any witness has been granted to the Respondents - Appeal of Revenue dismissed. - Customs Appeal Nos.75673 of 2022 WITH Customs Appeal Nos.75675 of 2022 - FINAL ORDER NO. 75032-75033/2023 - Dated:- 6-2-2023 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Shri S.Chakraborty, Authorized Representative for the Revenue Shri Wattan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Whatsapp chat between one Shri Anand and the Respondents which is another evidence against the Respondents, therefore, the Ld.Commissioner(Appeals) made an error by dropping the penalty against the Respondents. He further submitted that the statement recorded before the Customs official is not a statement recorded under section 161 of the Criminal Procure Code therefore it is a material piece of evidence collected by the Customs officials under section 108 of the Customs Act, therefore, the Ld.Commissioner(Appeals) made an error while dropping penalty. In support of his contentions, the Ld.Authorized Representative for the Revenue relied on the following decisions:- (a) Surjeet Singh Chhabra Vs. UOI [Order dated 25.10.1995 by the Hon ble Apex Court] (b) Naresh J. Sukhawani Vs. UOI [1996 (83) ELT 258 (SC)] (c) Percy Rustomji Basta Vs. State of Maharashtra [1983 (13) ELT 1443 (SC)] (d) K.I. Pavunny Vs. Asstt.Collr. (HQ), C.Ex. Collectorate, Cochin [1997 (90) ELT 241 (SC)] (e) Kuber Tobacco Products Ltd. Vs. Commissioner of C.Ex., Delhi [2013 (290) ELT 545 (Tri.-Del.)] (f) Vinod Solanki Vs. UOI Anr. [Civil Appeal No.7407 of 2008 by Hon ble Apex Court] 4. On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the accused apart from the statement recorded under Section 108 of the Customs Act, 1962. In that circumstances, the decision is not applicable. The remaining cases relied upon by the Ld.Authorized Representative are not applicable to the facts of the present case. 9. Further I find that in the case of Rajendra Prasad (supra), this Tribunal has observed as under:- 4 . Shri R.K. Roy, learned JDR, countering the arguments of the learned Consultant, reiterates the findings of the original authority and the appellate authority. He submits that the corroborative evidence can be used as a substantial evidence, as held by the Honourable Supreme Court in the case of Naresh J. Sukhawani v. Union of India reported in 1996 (83) E.L.T. 258 (S.C.) wherein it was held that the statement of the co-accused, recorded under Section 108 of the Customs Act, 1962, inculpating himself as well as the petitioner can be used as a substantive evidence. Shri Roy has also invited my attention to the decision of the Honourable Tribunal in the case of Mohmedbhai Asrafbhai Kimsarwala v. Collector of Customs reported in 1991 (52) E.L.T. 573 (Tribunal), wherein it was held that the statement of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was seized by the DRI. During the investigation DRI recorded the statement of Mr. Hashim, Director of exporter company and also the appellants. In the statement of Mr. Hashim, he has clearly stated that he was responsible for smuggling of red sander wood logs and the appellants were not knowing about their smuggling plan. All these appellants were based at Mangalore whereas the truck was stuffed with Mysore Detergent Cake at Bangalore in the presence of the Director of the company and the Superintendent of Central Excise. Further, I find that both the authorities in their orders have admitted that there is no direct proof of the complicity of the appellants and there is suspicion against each of the appellant and on the basis of that suspicion, the appellants have been imposed penalties. It is pertinent to note that the Tribunal in various decisions cited supra by the Learned Counsel for the appellant has consistently held that for imposing the personal penalty under Section 114(i) of the Customs Act, 1962, there should be acceptable legal evidence on record about the acts of commission or omission by the appellant. Further in order to hold that the appellant has abetted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses have signed in Hindi and Gujarati. Panchnama also does not record whether the panch witnesses knew English. PW-1 also says both panch witnesses are from N.M. Joshi Marg as per panchnama Exhibit P-2 and that N.M. Joshi Marg was 4 to 5 km away from the said premises. How did the panchas then land at the said premises? That is a mystery. Therefore, I am unable to believe the panchnama as produced was really prepared. To add to this, PW-2 says he does not know the details of panchnama because he was not party to panchnama. PW-2 also says PW-1 had called the panch witnesses and they were taken from our office to the said premises. If that was so, why were the panch witnesses not examined. PW-2 also says, though he was a member of the search party, he does not remember the mode of transport that was used to go to the said premises from their office. One can understand he may not remember the vehicle details but mode of transport is unbelievable. If I have to accept the submission of Ms. Mane that dehors the panchnama, in view of the confession recorded under Section 108, the Court can still convict the accused, then I ask myself why should they even take any panch witness and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any independent material brought on record by the appellant, the Chief Metropolitan Magistrate was perfectly justified in acquitting the accused no. 2. In absence of any evidence corroborating the statement of the accused no. 2 made before the Customs Officer on 24th March, 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion. 10 . Ms. Mane relied on the judgment of the Apex Court in Ramesh Chandra v. State of West Bengal [AIR 1980 Supreme Court 793] to submit that customs officers are not police officers and the statement recorded under Section 108 of the Customs Act, 1962, is admissible in evidence. I have to be candid that I have no quarrels with the preposition submitted by Ms. Mane. The issue is, can that statement be accepted blindly without corroboration, and the answer is no. 12. In view of the above discussion, I hold that the Ld.Commissioner(Appeals) has rightly dropped the penalty against the Respondents as there is no corroborative evidence on record in support of the statement made before DRI Officers which were retracted on first available opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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