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TMI Blog2022 (5) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of investigation, both the persons failed to produce legal documents for possession of the tortoises, and they had taken name of the accused persons. 4. Pursuant to investigation, show cause notice dated 27.05.2019 was issued on this appellant and two others viz. Balram Naiya and Kaushik Kumar Das. As per show cause notice, forest officials informed the customs officials regarding the seizure. Accordingly, DRI received a copy of the panchnama drawn by the Forest Officials along with statements of Balram Naiya alias Toofan and Kaushik Kumar Das, and also six live tortoises of foreign origin. As the six live tortoises appeared to be of foreign origin, the same were seized under Section 110 of the Customs Act, 1962 along with car /vehicle bearing registration no.WB-18 AA 0605, which was being used as a means of transportation. The seized live tortoises were handed over to the officer-in-charge, Regional Tiger Strike Force, for safe keeping. 5. Statement of Shri Balram Naiya @ Toofan was recorded under Section 108 of the Customs Act, 1962, wherein, he inter alia stated that he is resident of Bhadrakali, Uttarapara, Kotrang, Hooghly, West Bengal. He alongwith his friend, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve any business relations with Balram Naiya @ Toofan. He further stated that he never visited any Border district after 18.11.2018. Further, he resides in his home town area i.e. Hooghly, Howrah and Kolkata. 11. Statement of Shri Debu Haldar, S/o Shri Nitya Haldar, resident of Halderpara Gaori, Mathurapur, Krishnaganj, Nadia, West Bengal was recorded on 27.03.2019, wherein, he inter alia, stated that he is a farmer and does not deal in any exotic tortoise/animals. Further, stated that he knows Balram Naiya as he used to visit his village and nearby areas. He further stated that all the allegations made by Balram Naiya against him are false and stated that he refused to give some money to Balram Naiya as requested by him. He also stated that he knows Abhishek Kundu for the last 2-3 years and he sold one pigeon to him two years ago. 12. Another statement of Balram Naiya was recorded on 2.4.2019 in presence of a Bengali Officer, wherein, he inter alia, stated that he had stated some facts wrongly, which were recorded in the earlier statement on 28.11.2018. The correct facts are that Abhishekh Kundu called him telephonically on 25.11.2018 at 11 a.m., and when the appellant reached hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (from whom six exotic tortoises were seized on 26.11.2018) and thus, it appeared that Abhishek Kundu on 24.11.2018 had visited Nadia District to receive the delivery of the tortoises, and then kept them at his residence. 16. This appellant could not provide satisfactory answers to the question put up before him. Thus, it appeared to Revenue that this appellant has received those six tortoises of African origin, which have been moved into India through Bangladesh, and thereafter, with the assistance of Balram Naiya alias Toofan and Kaushik Kumar Das, the same were being transported for delivery. It further appeared that the appellant had received the said delivery and further involved in transportation of those six tortoises, being of African origin. 17. Further it appeared, the vehicle/car No. WB18AA 0605 registered in the name of Sandeep Agnihotry is also liable to be confiscated under Section 115 of the Customs Act. 18. It further appeared to Revenue that on the basis of the call detail records and tower locations of mobile no.9163450744, appeared that this appellant had visited village Ayespur, Block Haringhata, District- Nadia, West Bengal, Border Area for receiving the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Revenue have relied upon against this appellant. 22. First the statement of the co-accused, Shri Balram Naiya and Shri Kaushik Kumar Das. The second is on the basis of the 'call detail records', it is alleged that this appellant had received the tortoises in question in Nadia District, West Bengal from Mohd. Khalil. The third is the petro fuel slip issued by ADCO Motor Pvt. Ltd. on 25.11.2018 on the basis of which, it is alleged that this appellant had arranged for transportation through Balram Naiya and had got the fuel filled in the vehicle and made the payment by using his debit / credit card. 23. So far the relevant statements of the co-accused, Balram Naiya and Kaushik Kumar Das are concerned, these statements have been relied upon without following the procedure as mandated under Section 138 B of the Customs Act, which requires that Adjudicating Authority should examine the persons in the adjudication proceedings and once the evidence is substantiated with regard to the statements of the persons, such witnesses should be offered for cross examination. 24. In the facts of the present case the said witnesses were not examined viz. Balram Naiya and Kaushik Kumar Da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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