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TMI Blog2025 (3) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter's consignment having shipping bill no. 3003627 dated 26.03.2019 on hold. Since, the container had already left the premises at ICD, TKD and therefore, the same was held up at Speedy CFS, Nhava Sheva, Distt. Raigad, Maharashtra. The export consignment was examined vide Panchnama dated 09.05.2019 in the presence of appellant and representative samples were also drawn from the stock of export goods, namely, 'LED FLASH LIGHT TORCH' belonging to the abovementioned shipping bill. Valuation of goods, seized by the department, was done by Chartered Engineer appointed by the DRI under Panchnama Proceeding dated 20.01.2020. In view of investigations done by the department and statements recorded during investigations, it has been alleged by the department that the exporter is engaged in the export of Led Flash Torch light by gross over-valuation and mis-declaration with an intention to avail higher export incentive benefit. 1.2 Statement of Shri Mali Ram Agarwal for M/s. Agogo Overseas was recorded on 28.08.2019 who stated about starting the company in the name of Rang Bahadur Sharki as proprietor. He named Shri Amit as a person responsible for all invoices, lorry receipts, e-way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) erred in giving incorrect factual observation that it was at appellate stage that the statement dated 22.05.2019 was contended by the appellant to not to be voluntary. It is impressed upon that the submission with respect to statement being not voluntary, was made at the original adjudication level itself. 3.1 The learned consultant further objected the allegation that appellant was admittedly charging 1% of IGST/Drawback claim and that the same has wrongly been made the criteria for imposing penalty on the appellant. The statement was otherwise involuntary. The appellant was introduced to M/s. Agogo Overseas by Shri Amit Batra of M/s. KP Logistics. However, appellant received KYC documents from the proprietor of the exporter firm. The premise of whole case against the appellant has been the alleged knowledge with respect to alleged overvaluation by the exporter. However, there is no such evidence nor even Shri Mali Ram Agarwal has stated about knowledge of over valuation with the appellant and about charging of 1% of IGST / drawback by the appellant. Further, the appellant in the appeal before Commissioner (Appeals), had made detail submissions explaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 i.e. for attempting to export goods improperly and for use of false and incorrect material respectively. Foremost I observe that 'attempt' ordinarily means an intent combined with an act falling short of the thing intended. It is an effort to accomplish a crime, amounting to more than mere preparation or planning for it, which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design. Thus, in order to constitute an act of attempt the act must possess following four characteristics: (i) It must be a step towards a punishable offence. (ii) It must be apparently adapted to the purpose intended. (iii) It must come dangerously near to success. (iv) It must not succeed. 5.2 I further observe that the allegations of attempt to export goods improperly have been confirmed against the appellant solely relying upon his statement alleging the same as the admission on part of the appellant. The copy of the said statement is produced by the department. Perusal thereof reveals that the appellant is admittedly the authorized CHA of the exporting firm, the main appellant. He produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings. 5.6 The Hon'ble Supreme Court also appreciated that Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said section is intended to be exercised by a gazetted officer of the Customs Department. Subsection (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost. The Hon'ble Supreme Court also held that statement recorded by customs officers under Section 108 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said discussion and that the statement of Shri Mali Ram Agarwal has not stood the test of Section 138B of the Customs Act, also that the appellant has objected his statement recorded under Section 108A as involuntary, recorded under pressure. Resultantly, I hold that the statements on record are miserably insufficient to prove the alleged act of attempt to export improperly and to use the false information is wrong. For appellant's alleged admission also since same stands retracted subsequently no evidentiary value can be attached that too in absence of any corroborative evidence. 5.10 The burden to produce the evidence (corroborative) was still upon the department and same is required to be discharged effectively as it was held by the Principle Bench of this Tribunal in the case of Vikram Cement Pvt. Ltd. Vs. Commissioner of Central Excise, Kanpur reported as 2012 (286) ELT 615 (Tri. Del.). This Tribunal in another case of Tejal Dyestuff Industries reported as 2007 (216) ELT 310 (Tri.) held that the revenue cannot make its case on the basis of statement alone in the absence of any independent evidence to corroborate the same. The said decision was confirmed by Hon'ble Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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