TMI Blog2024 (1) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... is seen that prima facie no significant evidence has been gathered from the searches made in premises of the appellants. From the evidences, it is apparent that the SCN is largely based on the statements recorded during investigations. It is apparent that the statements cannot be relied without cross-examination of the witnesses. It will be necessary for the authorities to grant cross examination of all the witnesses before relying on their statements. The current order which has been relying very heavily on all these statements and that too without granting cross-examination cannot therefore be sustained. The order is therefore set aside and matter remanded to the original adjudicating authority to decide the issue a fresh - appeals are allowed by way of remand. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Sanjay Karla , Shri N. D George , Advocates for the Appellant Shri Himanshu P Shrimali , Superintendent ( Authorized Representative ) for the Respondent ORDER RAJU These appeals are filed by Shri Tejas Narendra Mehta M/s. Jeguar Shipping and Logistic Pvt Ltd, Shri Tony N. Fernandes D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mehta of M/s Samrat Shipping Agency is also involved with the importer namely Babu Ramji Bera in illegal smuggling of cosmetics by mis-declaring the same as printing paper. It was alleged that Shri Tejas N. Mehta in his statement dated 13.11.2017 stated that he had made payment of Customs Duty on behalf of the importer Sandip from his Dena Bank No. 002111002149, and the amount was paid to him by Shri Babu Ramji Bera in cash. The said account was found to be in name of Samrat Shipping Agency and Shri Tejas Mehta s mother is the proprietor of M/s. Samrat Shipping Agency. The custom duty for the clearance of Bill of Entry No. 6611719 filed by M/s. Sandip amounting to Rs. 3,10,449 on 16.09.2016 was paid through the said account. It was also alleged that the duty for Bill of Entry No. 6419171 dated 19.08.2016 filed by M/s. Sandip amounting to Rs. 3,10,449/- on 16.09.2016, was also paid through Dena Bank Account No. 002111002149 of Shri Tejas N. Mehta. In the said statement, Shri Tejas Mehta had admitted that it was his fault that he did not asked Shri Babu Ramjee Bera to get IEC in his own name and to pay customs duty from his own Bank Account. He also admitted that he used to go to IC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. Therefore, no penalty under Section 112, 114A or 114AA can be imposed on the appellant. He further argued that even if it is assume that the appellant had paid the duty on behalf of the importer and was later reimbursed by the importer, it cannot be an offence under Section 112 or 114A, 114AA of the Customs Act. He further argued that the script used by the importer M/s. Sandip Enterprises is not forged or illegally obtained as the details are available in DGFT website as genuine. In this background, learned Counsel sought relief. 2.6 Learned Counsel appearing on behalf of the appellant Jaguar Shipping and Logistics Ltd, Shri Tony N. Fernandes and Shri Bharat Achare pointed out that there is no direct role of the appellants in the import of goods. It has been argued in the impugned order that the appellant had failed to verify the business premises of the importer M/s. Sandeep at Thane, Pune and Ahmedabad. He argued that from the order-in-original, it is seen that linkage with the importers namely Shri Babu Ramji Bera and Shri Tejas N. Mehta has been made without any evidence. 2.7 The SCN alleges that Shri Rajesh Mukhiyajee G-Card Holder had given contradictory statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125(1) of the Customs Act, 1962. The order-in-original does not imposed penalty on Sandip Enterprises under Section 112(a) of the Customs Act. The order imposes penalty on Shri Baburam Bera of Rs. 20 Lakh under Section 112(a) of the Customs Act, Rs. 15 Lakhs under Section 114AA of the Customs Act. The order-in-original imposes penalty on Shri Tejas N. Mehat of Rs. 15 Lakhs under Section 112(a)of the Customs Act and Rs. 10 Lakhs under Section 114AA of the Customs Act. On Rajesh Mahendra Muhiyaji, the order-in-original imposes penalty of Rs. 15 Lakhs under Section 112(a) of the Customs Act and Rs. 10 Lakhs under Section 114 AA of the Customs Act. 3.1 The order-in-original does not impose any penalty on M/s. Sandeep Enterprise either under Section 112(a) or Section 114AA of the Customs Act, 1962. The order in original imposes penalty of Rs. 5 Lakhs under Section 112(a) and Rs. 5 Lakhs under Section 114AA on Jaguar Shipping and Logistics. The order in original imposes penalties of Rs. 5 Lakhs under Section 112(a), and Rs. 5 Lakhs under Section 114AA of the Customs Act on Shri Tony and Fernandes. The order in original imposes penalty of Rs. 5 Lakhs under Section 112(a) and Rs. 5 Lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of india. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and Imposition of penalty. There is no ground warranting reduction of fine. 10.7.2 A Constitution Bench of Apex Court of India in the matter of Romesh Chandra Mehta v. State of W.B. (1969) 2 SCR 461 AIR 1970 SC 940, held that the Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling and for that purpose they are invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of Surjeet Singh Chhabra Vs UO reported as 1997 (89) ELT 646 (SC) has also pronounced that confessional statement made before Customs officer under Section 108 of the Customs Act, 1962, though retracted, is an admission and binding since Customs Officers are not Police Officers. Further, in the case of Gulam Hussain Shaikh Chougule Vs S. Reynolds, Supdt. Of Customs, Marmgoa reported as 2001 (134) ELT 3 (SC), relying on various judgments of Apex Court of reported as AIR 1972 SC 1224, 2000 (120) ELT 280 (S.C); 1999 (110) ELT 324 (S.C.); 1992 (60) ELT 24 (S.C.); 1999 (110) ELT 309 (S.C.); 1983 (13) ELT 1443 (S.C.); 1983 (13) ELT 1590 (S.C.), has further held that confessional statement recorded by Custom officer under Section 108 of Customs Act, 1962 are not required to follow safeguards provided under Section 164 of the Code of Criminal Procedure, 1973. 10.8.1 In view of the above, the statements under the present proceeding are material piece of evidence to establish the case for Revenue. Apex Court in the case of Kl. Pavunny Vs AC Cochin reported as 1970 (90) ELT 241 (SC) has held that when the material evidence establish fraud against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted . Since it is exceedingly difficult, if not absolutely impossible for the prosecution prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32, Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. 5.3 In the facts of the case, it is apparent the role of each person involved has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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