2016 (12) TMI 1504 - AT - Customs

Exports of contraband/ restricted goods - Hashish - imposition of penalty u/s 114 of the CA, 1962 - whole case revolves mainly on the statements of the appellant recorded and certain evidences relied upon by the Revenue - it was claimed by appellant that the statements were taken under coercion and duress - Held that - it is not only appellants statement alone but there are various corroborative evidences such as categorical statement of Shri. Nitin K Bhanushali who clearly stated that appellant is the main person who was involved in the exports of contraband/ restricted goods - further nothing was found in support of appellant, that the allegations are untrue, and violating the principles of natural justice. Ld. Commissioner in the denovo adjudication process complied with the principle of natural justice holding that Shri. Haresh Gandhi had aided and abetted Shri. Nitin Bhanushali in the illegal exports and passed a reasoned order of imposition of penalty u/s 114 - imposition of penalty upheld - appeal dismissed - decided against appellant.

Issues Involved:
1. Validity of the appellant's statements recorded under Section 108 of the Customs Act.
2. Corroborative evidence supporting the appellant's involvement in illegal exports.
3. Retraction of statements and its impact on the case.
4. The identity of the appellant as "Deepak" mentioned by Nitin K. Bhanushali.
5. Compliance with principles of natural justice by the adjudicating authority.

Detailed Analysis:

1. Validity of the appellant's statements recorded under Section 108 of the Customs Act:
The appellant argued that the statements recorded under Section 108 of the Customs Act were obtained under coercion and duress. These statements were retracted immediately, thus, the appellant contended that they should not be relied upon. The Revenue, however, maintained that the statements were voluntary and not retracted before the DRI officers, thus should be considered valid.

2. Corroborative evidence supporting the appellant's involvement in illegal exports:
The Revenue presented multiple pieces of corroborative evidence, such as the statements of Nitin K. Bhanushali, recovery of cash, and demand drafts made for freight payments. Nitin K. Bhanushali's statements implicated the appellant as the main person involved in the illegal export of contraband goods. The evidence indicated that the appellant was connected to the illegal exports through his firm, Gopikant Brothers.

3. Retraction of statements and its impact on the case:
The appellant’s retraction was made during criminal proceedings related to a separate Hashish case and not specifically before the DRI officers concerning the statements under Section 108. The adjudicating authority found that the retraction was general and did not specifically address the statements recorded under Section 108. Therefore, the retraction was not given much credence, and the statements were considered admissible.

4. The identity of the appellant as "Deepak" mentioned by Nitin K. Bhanushali:
The appellant contested that the identity of "Deepak" mentioned by Nitin K. Bhanushali was not proven to be him. However, the adjudicating authority found that Nitin K. Bhanushali had initially referred to the person involved as "Deepak" but later clarified that "Deepak" and the appellant were the same person. The circumstantial evidence and statements indicated that the appellant was indeed the person referred to as "Deepak."

5. Compliance with principles of natural justice by the adjudicating authority:
The adjudicating authority followed the principles of natural justice by allowing cross-examination of the officers who recorded the statements. The cross-examination did not reveal any significant information that could exonerate the appellant. The adjudicating authority provided a reasoned order, considering all the evidence and submissions, thus upholding the penalty imposed on the appellant.

Conclusion:
The appeal was dismissed, and the penalty of ?15 lacs under Section 114 of the Customs Act, 1962, was upheld. The adjudicating authority's detailed findings and adherence to the principles of natural justice were affirmed. The appellant’s involvement in the illegal export of contraband goods was established through corroborative evidence and statements, despite the appellant's retraction claims.

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