2019 (5) TMI 1518 - AT - Customs

Waiver of penalty imposed u/s 112 of Customs Act, 1962 - smuggling of prohibited goods - R-22 gas - Revenue has preferred this appeal, on the ground that audio files extracted from I-phone 5 of Shri Rupender Singh Chadha, the main conspirator, clearly demonstrate that he had conspired to smuggle the prohibited good, namely, R-22 gas - HELD THAT - We are not in agreement with Revenue s contention that the conversation proved respondent s involvement in clearance of impugned consignment on the ground that When DRI intercepted the consignment, those had already been examined and passed out of Customs charge was already given by the inspector and the Superintendent. Thus, there is no allegation/ evidence of influencing any of the officer in clearing the container by the respondent. There is no evidence to suggest that the respondent was in contact with any of the other co-noticees. The DRI had resumed the mobile phones of Manish Jalhotra, Rupender Singh, Dinesh Kumar Badopalia, Shri Prahlad Singh, Shri Gulshan Singh and examined them during the course of investigation but in the entire Show Cause Notice there is no allegation about the respondent having ever been received or made any call to any of them. Also, No one, who has been indicted in the Show Cause Notice as conspirators, have ever insinuated the respondent in any manner. There are no discrepancy in the finding of Ld. Commissioner regarding that respondent was neither involved in assessment nor examination of the consignment, and hence had no direct or indirect role in the clearance of consignment and thus case of imposition of penalty under Section 112 had not been made out against him. There are no infirmity in the impugned order as far as it relates to respondent - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against dropping of penalty under Customs Act based on audio files extracted from the I-phone 5 of the main conspirator.

Analysis:
1. The appeal was filed by the Revenue against the dropping of penalty proceedings under the Customs Act by the Commissioner, based on the discovery of restricted R-22 gas cylinders concealed in containers declared to contain copier paper. The investigation revealed a conspiracy to smuggle the prohibited goods.

2. The Revenue contended that the audio files extracted from the I-phone 5 of the main conspirator clearly implicated the respondent in aiding and abetting the smuggling operation. The review order emphasized additional evidence against the respondent from witness statements during the investigation.

3. The Revenue argued that the CFSL report confirmed the respondent's involvement through voice samples in the audio files, indicating regular contact with the main conspirator. The Adjudicating Authority was criticized for overlooking this crucial aspect and dropping the penalty imposition against the respondent.

4. In defense, the appellant's advocate asserted that the respondent had no direct involvement in the examination or assessment of the detained consignment. The reliability and admissibility of the audio recordings were questioned, claiming they were unreliable, unsubstantiated, and incoherent as evidence.

5. The appellant's submissions highlighted various inconsistencies and deficiencies in the audio recordings, questioning their clarity, authenticity, and the procedure followed during forensic examinations. The defense also raised doubts about the identification of voices and the circumstances surrounding the recording.

6. The Adjudicating Authority, while acknowledging the audio files as admissible evidence, concluded that the conversations occurred after the clearance of the consignment, absolving the respondent of direct involvement in the smuggling operation. The Commissioner noted the lack of evidence linking the respondent to the assessment or examination of the impugned consignment.

7. The Tribunal carefully examined the facts surrounding the recovery and analysis of the audio files, the CFSL report, and the alleged conversations. It disagreed with the Revenue's argument that the recordings proved the respondent's complicity in the smuggling, citing lack of evidence of influence on customs officers or contact with other conspirators.

8. The Tribunal found no evidence of the respondent's communication with other co-noticees or involvement in the import and clearance of the contraband goods. It deemed the reliance on the audio recordings unjustified, especially since even the main conspirator did not recognize the voices in the recordings.

9. Ultimately, the Tribunal upheld the impugned order, dismissing the Revenue's appeal against the dropping of penalties against the respondent. It clarified that the decision only pertained to the respondent and did not address the validity of the order concerning other parties involved in the case.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's reasoning behind dismissing the appeal.