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TMI Blog2019 (11) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ant as the retraction claiming use of force was not corroborated with any other evidence of having been compelled. Thus, a proposition, which fails the test of reasonableness, must be corrected by evidence but a statement of retraction does not have to be. The findings that follow from this assumption on the part of adjudicating authority evidently lacks reason and logic. Therefore, the penalties imposed on the custom house agent, M/s HP Joshi Co, and Shri Ashwin Joshi fail. Imposition of penalties on Shri Kiran Vohra and Shri Iqbal Mehra - HELD THAT:- In the absence of any material evidence that could overcome the findings of the original authority in favour of Shri Kiran Nagindas Vohra and of any material that could support the findings against Shri Iqbal Mohan Amritlal Mehra, without reference to the statements alone, the penalties against them will not sustain. Penalties set aside - appeal allowed - decided in favor of appellant. - Customs Appeal No: 881 of 2009, 882 of 2009, 883 of 2009, 903 of 2009, 904 of 2009, 979 of 2009, 1049 of 2009 - A/86739-86744/2019 - Dated:- 19-9-2019 - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) AND HON BLE MR AJAY SHARMA, MEMBER ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... win Joshi, challenged the imposition of penalties of ₹ 5,00,000, ₹ 3,00,000 and ₹ 2,00,000 respectively. Two directors of M/s Radheyshyam Exports Pvt Ltd, Shri Sandeep Naik and Shri Shilpesh Sawant, also disputed the penalties imposed on them. 4. The Tribunal, vide order no. A/1921-1929/13/CSTB/C-I dated 15th May 2013, dismissed the appeals of Shri Naik and Shri Sawant for non-prosecution and, while upholding the penalties against Shri Iqbal Mehra, allowed the appeals of Revenue to impose like penalties on Shri Vohra besides deciding on the non-maintainability of the appeals of the other three as being outside the scope of remand, as set out by Tribunal in the earlier round of appeal. The latter preferred applications for rectification of mistake and, on perusal of record evidencing that the remand order encompassed the challenge posed by these three, the Tribunal, vide order no. M/1408-1410/14/CSTB/C-I dated 15th July 2014 restored these. 5. Shri Kiran Vohra approached the Hon ble High Court of Bombay challenging the imposition of penalty against him by the Tribunal and, noting that 18. All this was before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal that the Commissioner has erred in taking a view that no penalties can be imposed on the said Vora. The Tribunal's conclusion that in case of retraction of confessional statement can be ignored might be correct as a general statement of law but that inculpatory portion of retracted confession must be relied upon together with independent corroborative material. The same only cannot be then relied upon and to base any conclusion. Therefore, its further finding that a case cannot be demolished merely by cross-examination of witnesses by ignoring circumstances and corroborative evidence is equally vitiated because the cross-examination may contain admissions. The cross-examination may also have vital omissions and inconsistencies. If all this has to be ignored, then, there has to be overwhelming independent material. Nothing of all this has been referred to, much less in details. In these circumstances, we cannot agree with Mr. Jelty that the Tribunal's order cannot be termed as perverse. We do not agree with him that this appeal is an attempt at reappreciation and reappraisal of the factual conclusions. 19. Once we hold as above, then it is evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial is sought to be relied upon. If the veracity of this is tested in the cross-examination and the party withstands the same then alone the version as found in the affidavit or the recorded statement can be termed as evidence and accepted and relied upon by an Adjudicating Authority. (See M/s. Bareilly Electricity Supply Co. Ltd. vs. The Workmen and Ors. AIR 1972 SC 330). This salutary principle would govern even adjudication proceedings. We do not, therefore, know as to on what basis, even if all had consented, that the Adjudicating Authority and the Tribunal allowed co-noticees to cross examine each other. Here also in this case and in the Memo of Appeal in the present matter, we find that the appellant has while disassociating himself completely from the transactions and the entities, sought to inculpate Mr. Mehra. Therefore, it is one version against the other. In such circumstances, the Tribunal as also the Commissioner would have been properly advised to chart a safe course and as is found in the above principles. even while making it clear that 20. Thus, this appeal succeeds. The impugned order is quashed and set aside. Resultantly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the reply or response of the said Mehra to it. That having not been done, the conflicting order and variations emerging therefrom shows that there are substantial questions of law. 7. Of the three appeals restored by the Tribunal, it is now submitted that Shri Kantilal H Shah has since expired on 7th May 2016 and that, according to the Customs, Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982, in the absence of an application for carrying the proceedings forward, appeals abate. The certificate issued by the Municipal Corporation of Greater Mumbai is placed on record. Accordingly, the appeal abates, notwithstanding the various decisions cited on which we decline to make any observations thereto or issue any directions thereon. 8. Consequently, we are now confronted with two appeals of Revenue disputing the dropping of proceedings against Shri Kiran Vohra, two appeals of Shri Iqbal Mehra against the imposition of penalties of ₹ 15,00,000 each and the appeal of the custom house agent and its employee . The issues pertaining to overvaluation of export goods, the diversion of the same at Dubai and the consequent ineligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Iqbal Mohan Amritlal Mehra and that any discrimination thereto is not proper. The original authority has excluded Shri Kiran Nagindas Vohra from penal action while imposing penalty on Shri Iqbal Mohan Amritlal Mehra. It was in the contest of the upholding of the penalty against the latter and the imposition, for the first time, of the penalty on the former that the matter was considered by the Hon ble High Court of Bombay. 12. It is seen from the statement of Shri Sandeep Naik that Shri Vora had no communication with M/s Radheshyam Exports Pvt Ltd. The statements that led to the imposition of penalties against the two individuals were retracted and hence not admissible as evidence. We also find no documentary, or other, evidence to support the allegations in the show cause notice against these two individuals. The reliance placed on the statements of one another, even if they were co-noticees, were not sufficient to establish correctness of those statements. The retraction of the statements are also equally valid. In the absence of any material evidence that could overcome the findings of the original authority in favour of Shri Kiran Nagindas Vohra and of any ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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