2022 (5) TMI 1635 - AT - Customs

Smuggling of Exotic live tortoises - Transportation of Tortoises of African origin, have been moved into India through Bangladesh - Confiscation - Penalty - Admissibility and reliability of statements of co-accused - Validity of call detail records as evidence - Relevance of fuel slip as evidence - HELD THAT - The witnesses were not examined viz. Balram Naiya and Kaushik Kumar Das, in the adjudication proceedings and further, in spite of request by this appellant, they were not produced for cross examination. Thus, no reliance can be placed on such statements, for not following the mandate of law. So far the call detail records are concerned, ld. Counsel has filed the copy of the RUDs , which include call detail records , which are collected by the Revenue. Ld. Counsel demonstrates that as per call detail records, as made from Mohd. Khalid to this appellant on 24.11.2018 at 1815 hrs., the tower location of the appellant is at Kolkata. On the same day, this appellant had made a call to Mohd. Khalil at 16.02 hrs and the tower location of Mohd. Khalil is outside Kolkata. Thus the allegation of the Revenue that on 24.11.2018 in the afternoon, this appellant was present in Nadia District near the Indo Bangladesh border, is without any basis and only by way of wild allegation, which is not substantiated and rather demolishes the evidences on record. So far the third allegation relied upon by the Revenue on fuel slip issued on 25.11.2018, the appellant had led the evidences at the time of adjudication proceedings, by filing the copy of the cash memo no.719 dated 25.11.2018 issued by ADCO Motor Pvt. Ltd., which was issued for filling the fuel in the vehicle No.WB 18 S6688 at 1416 hrs. for an amount of Rs.2824.21. Thus, reliance placed by the Revenue on the Teller /P.O.S. Slip for the same amount of the same date, and alleged that it was for filling the fuel in the seized vehicle, has got no legs to stand, is rather not on the basis of the facts on record. Although there is suspicion against this appellant on the basis of the statement of the co-accused, but in view of the aforementioned discussion, I find that the Revenue has erred in relying upon the three aforementioned evidences, which do not stand the test, and rather found to be wild allegation without any cogent basis. So far the statement of co-accused is concerned, the same cannot be relied upon in absence of corroborative evidences, as held by the Hon ble Supreme Court in the case of Vinod Solanki Vs. Union of India 2008 (12) TMI 31 - SUPREME COURT . Accordingly, I allow this appeal and set aside the impugned order so far this appellant is concerned. Thus, the appeal is allowed.

Summary

Issues Involved:
1. Imposition of penalty u/s 112(b)(i) of the Customs Act, 1962.
2. Admissibility and reliability of statements of co-accused.
3. Validity of call detail records as evidence.
4. Relevance of fuel slip as evidence.

Summary:

Issue 1: Imposition of Penalty u/s 112(b)(i) of the Customs Act, 1962
The appellant, Abhishek Kundu, was penalized Rs.30 lakhs u/s 112(b)(i) of the Customs Act, 1962, for his alleged involvement in the smuggling of six exotic 'African Spurred Tortoises'. The Joint Commissioner, Customs, Indore, ordered the absolute confiscation of the tortoises and the vehicle used for transportation, and imposed penalties on the appellant and two others.

Issue 2: Admissibility and Reliability of Statements of Co-accused
The Revenue relied on statements from co-accused Balram Naiya and Kaushik Kumar Das. However, these statements were not examined in the adjudication proceedings as mandated u/s 138B of the Customs Act. The appellant's request for cross-examination was denied, making the statements inadmissible.

Issue 3: Validity of Call Detail Records as Evidence
The Revenue alleged that the appellant received the tortoises in Nadia District based on call detail records. However, the appellant demonstrated that his tower location was in Kolkata at the relevant times, contradicting the Revenue's claims. The Tribunal found these allegations to be baseless and unsubstantiated.

Issue 4: Relevance of Fuel Slip as Evidence
The Revenue claimed that a fuel slip indicated the appellant arranged transportation for the tortoises. The appellant provided evidence showing the fuel slip was for a different vehicle, discrediting the Revenue's claim. The Tribunal found no basis for this allegation.

Conclusion:
The Tribunal concluded that the evidence against the appellant did not stand the test of scrutiny and were wild allegations without cogent basis. The appeal was allowed, and the impugned order was set aside concerning the appellant.