2015 (9) TMI 192 - AT - Customs

Penalty u/s 114 - Import of illicit consignment - Held that - Appellant that he cannot be penalised on the basis of the statements of the co-accused particularly in the absence of cross-examination. However, I find that he himself gave statement under Section 108 ibid that he agreed to use of IE code of M/s. ICI India Pvt. Ltd. and affixed the signatures on the documents to get the consignment cleared. This statement was never retracted and is an admissible evidence. Indeed, the statement of the appellant which was never retracted is in complete harmony with the statements of Mr. Rajeev Gupta and Shri Nand Ram. Thus, even if the statements of both these persons are not relied upon, the very fact that they are in harmony with the statement of the appellant, further enhances the evidentiary value of the appellant s statement to a degree sufficient for the purpose of imposition of penalty under Section 114 ibid. In the light of the foregoing and having regard to the nature of mis-declaration and nature of the impugned goods, I am of the view that the appellant is liable to penalty under Section 114 of the Customs Act. Also the penalty imposed by the adjudicating authority is neither excessive nor arbitrary or perverse. Therefore, I see no reasonable ground to set aside the impugned order - Decided against assessee.

Summary

Issues:
Penalty imposed under Section 114 of the Customs Act, 1962 for mis-declaration in export of terracotta panels as gear cutting machine parts.

Analysis:
The appeal was filed against the penalty imposed under Section 114 of the Customs Act, 1962 for mis-declaration in the export of terracotta panels as gear cutting machine parts. The appellant admitted to fabricating documents and providing false information to export the goods. The consignment was booked in the name of a different company, and the appellant abetted in attempting to export the mis-declared goods. The adjudicating authority imposed a penalty of Rs. 1 lakh on the appellant based on these actions.

The appellant contended that he was penalized based on statements of co-accused, claiming he had no involvement in procuring or attempting to export the illicit goods. He argued that he booked the cargo on a commission basis through a freight carrier and had no knowledge of the illegal consignment. The appellant also mentioned that certain documents were taken from his diary without his knowledge by one of the co-accused.

The Departmental Representative argued that the appellant had admitted to forging documents and signatures on instructions from the co-accused. The statements of the co-accused corroborated each other, and the appellant never retracted his initial statement. The Departmental Representative emphasized the consistency in statements as evidence against the appellant.

The judge acknowledged the appellant's argument regarding being penalized based on co-accused statements without cross-examination. However, the judge noted that the appellant's own statement admitting to using false documents and signatures was never retracted. This statement aligned with the statements of the co-accused, enhancing its evidentiary value. The judge found the penalty justified under Section 114 of the Customs Act due to the nature of mis-declaration and the appellant's actions. The penalty imposed was deemed reasonable and not excessive, arbitrary, or perverse, leading to the dismissal of the appeal.

In conclusion, the judgment upheld the penalty imposed on the appellant for his involvement in mis-declaration and attempted export of terracotta panels as gear cutting machine parts. The judge found the appellant liable under Section 114 of the Customs Act based on his own admission and the consistency of statements with the co-accused. The appeal was dismissed, and the original penalty upheld.