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2019 (4) TMI 947 - AT - Customs100% EOU - Provisional release of goods - export of goods - No corroborative evidences - cross examination of witnesses - Held that - It is settled law that statements recorded under section 108 of Customs Act, 1962 are admissible piece of evidence and need not be further corroborated. The goods were liable for confiscation under Section 113(i) and the exporter liable to penalty under Section 114 (iii) of the Customs Act, 1962. However, the ends of justice will be met if the penalty imposed on the exporter i.e. Appellant 1 is reduced to ₹ 40,00,000/- (Rupees Forty Lakhs only). Appeal allowed in part.
Issues Involved:
1. Confiscation of goods under Section 113(i) of the Customs Act, 1962. 2. Imposition of penalties under Section 114(iii) and Section 114AA of the Customs Act, 1962. 3. Denial of cross-examination of witnesses. 4. Admissibility and reliance on statements recorded under Section 108 of the Customs Act, 1962. 5. Misdeclaration of goods in export documents. Issue-Wise Detailed Analysis: 1. Confiscation of Goods under Section 113(i) of the Customs Act, 1962: The Commissioner of Customs (Export) Nhava Sheva ordered the confiscation of 17,620 kgs of Brass Rods valued at ?87,48,710/- under Section 113(i) of the Customs Act, 1962, as the goods were attempted to be exported illicitly. The goods were misdeclared as "Electrical Earthing Accessories" but were found to be "Brass Rods." The Tribunal upheld the confiscation and the redemption fine of ?25,00,000/- imposed under Section 125 of the Customs Act, 1962. 2. Imposition of Penalties under Section 114(iii) and Section 114AA of the Customs Act, 1962: Penalties were imposed on M/s Divine Impex and Shri Yagnesh Trada under Section 114(iii) and Section 114AA of the Customs Act, 1962. The penalties were challenged on the grounds of lack of corroborative evidence. The Tribunal reduced the penalties: - For M/s Divine Impex, the penalty under Section 114(iii) was reduced from ?87,48,710/- to ?40,00,000/-. - For Shri Yagnesh Trada, the penalties under Section 114(iii) and Section 114AA were reduced from ?87,48,710/- and ?1,00,00,000/- to ?43,74,355/- and ?50,00,000/- respectively. 3. Denial of Cross-Examination of Witnesses: The appellants contended that the denial of cross-examination of witnesses was unjustified. The Tribunal held that cross-examination is not an absolute right and can be denied based on the merits of the case. The Commissioner had found no merit in allowing cross-examination, and the Tribunal upheld this decision, citing that the statements recorded under Section 108 of the Customs Act, 1962, are admissible evidence. 4. Admissibility and Reliance on Statements Recorded under Section 108 of the Customs Act, 1962: The Tribunal emphasized that statements recorded under Section 108 of the Customs Act, 1962, are admissible and can be relied upon. The statements of Shri Yagnesh Trada and other witnesses were found to be voluntary and corroborated by documentary evidence. The Tribunal referenced the Supreme Court's rulings in cases like K I Pavunny and D Bhoormal, which support the admissibility of such statements. 5. Misdeclaration of Goods in Export Documents: The appellants were found to have misdeclared the goods as "Electrical Earthing Accessories" instead of "Brass Rods." The Tribunal noted that the appellants manipulated records and documents to cover up the misdeclaration. Despite the goods being exported and foreign exchange being realized, the Tribunal held that the misdeclaration warranted confiscation and penalties. The test reports and technical literature supported the finding that the goods were not as declared. Conclusion: The Tribunal upheld the order of confiscation and the imposition of redemption fine. However, it reduced the penalties imposed on M/s Divine Impex and Shri Yagnesh Trada. The appeals were partially allowed, and the order of the Commissioner was modified to the extent of the reduced penalties.
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