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TMI Blog2019 (5) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Customs Appeal No. 53651 of 2018-DB - Final Order No. 50745/2019 - Dated:- 27-5-2019 - Shri Anil Choudhary, Member (Judicial) and Shri Bijay Kumar, Member (Technical) Shri Sunil Kumar, Authorized Representative, for the appellant Shri Piyush Kumar, Advocate for the respondent ORDER The present appeal has been filed by the Revenue against the order dated 31/08/2018 passed by ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versations. In his statement, dated 5/09/2013, the appellant stated that though voice in audio files at certain places could be his, however, he categorically denied having met Shri Rupender Singh Chadha any time. The DRI latter obtained the voice sample of Shri Rupender Singh Chadha and that of Respondent and forwarded them for further investigation to CFSL for matching of the voice found in the audio files extracted from I-phone 5 as stated above. On completion of investigation, the impugned Show Cause Notice dated 17/04/2014 was issued to the respondent for imposition of penalty under Section 112 of Customs Act, 1962. In adjudication proceedings the charge of imposition of penalty on the respondent was dropped by the Adjudicating Authority. 2. Being aggrieved by the impugned order, regarding dropping of penalty against the appellant, the 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. The review order was passed by the committee of Chief Commissioner under Provisions of 129 (D) (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was stucked off and name of Shri Manish Kumar was mentioned, however, the said cutting was neither countersigned or authenticated by any one nor any reason was given for substitution of cyber expert either in Record of Proceedings or Show Cause Notice. (v) The forensic examination was not carried out in the presence of any independent panch witness but only in the presence of DRI officers and Shri Rupender Singh who has surrendered the phone. (vi) The DRI while forwarding the samples to CESL categorically requested them to examine the date and time of recording, identification of voices, and also to identify as to whether the recorded conversation was between the two person or more than two persons, but in reply CFSL though opined that the voice exhibits of questioned speaker are similar to the voice exhibits of samples speaker i.e of Respondent with high probability but did not identify the other voices and did not give answer the query conversation is between two persons or more than two and also despite of Shri Rupender Singh Chadha s voice sample having been taken did not give any opinion about the presence of his voice in the audio files extracted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent. 8. Herd the parties and perused the appeal records. 9. As both the sides have heavily relied upon the audio conversation extracted from the I phone 5 belonging to Shri Rupender Singh Chadha , we have carefully examined the facts regarding recovery of said phone; retrieval of the audio file from the said phone; CFSL report; and the transcripts alleged a conversation found therein. We have also perused the finding of Ld. Commissioner in respect of said audio file as recorded in para 94.1.1 to 94.1.7 of the impugned order. 10. We are not in agreement with Revenue s contention that the conversation proved respondent s involvement in clearance of impugned consignment for following reasons; (a) 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. (b) 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 ph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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