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TMI Blog2021 (3) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... was not permitted to cross examine the witnesses was not tenable. Thereafter, the Commissioner (Appeals) had considered the contention that the statements of the other witnesses were retracted. While dealing with the said issue, it has noted that there are extensive corroborative evidences, which clearly point towards the appellant. Favouritism shown to the IEC holder - HELD THAT:- The Revenue did not prefer any appeal against the said finding. Thus, the Adjudicating Authority has discussed the factual position and arrived at a conclusion and imposed penalty. The findings recorded by the Adjudicating Authority especially with regard to the modus operandi were reconsidered by the first appellate authority and the findings were confirmed, but partial relief was granted to the appellant by deleting the penalty under Section 114AA of the Act. The concurrent finding of facts were tested by its correctness by the Tribunal. The Tribunal has re-appreciated the evidence and agreed with the finding of the Adjudicating Authority, which was confirmed by the first appellate authority. Therefore, we do not agree with the submissions made on behalf of the appellant that the order is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all records which were not relied upon in the show cause notice issued to the appellant under Section 124 of the Customs Act, 1962? v. Whether the Hon'ble Tribunal had erred in relying upon the alleged call records without the actual subject matter of the conversation in view of the decisions quoted by the appellant, namely Shafeek P.K. vs. CC, Cochin reported in 2015 (325) ELT 199 (Tri- Bang) and Anil Gadodia vs. CC, Mundra reported in 2016 (343) ELT 983 (Tri-Ahmd)? and vi. Whether the Hon'ble Tribunal had erred in relying upon the call records given by the mobile service provider without the mandatory certificate that is required to be issued under Section 138C of the Customs Act, 1962? 4.The facts leading to the impugned order are as hereunder:- 4.1.The Directorate of Revenue Intelligence, Chennai Zonal Unit (DRI), received specific intelligence to the effect that a consignment of biscuits in four cartons covered under bill dated 09.04.2015 has arrived from Singapore and that foreign marked gold bars were concealed in the said consignment and the consignment would be stored in the cold storage shed in import examination area of the Air Cargo Complex, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration or statement of document in the transaction of the business. 4.5.With regard to the proposal to levy penalty under Section 112 of the Act, it was submitted that the show cause notice is not specific as to under which sub-Section of Section 112, penalties were proposed against the appellant and therefore, it is vague and bad in law. Notwithstanding the stand, the appellant contended that sub-Clause (a) of Section 112, is applicable to a person, who in relation to any goods, does or omits to do any action, which would render the case liable for confiscation under Section 111 or abets the doing or omission of such act and sub-Clause (b) would be applicable to a person, who acquires possession, which is not the case alleged against the appellant. Further, the appellant has been implicated based on statements, which have been recorded from the other co-noticees, which are not voluntary statements and when the noticees were produced before the Judicial Magistrate for remand, they had stated that the statements were obtained by threat and coercion. With regard to the telephonic conversations, which were relied on in the show cause notice, the appellant submitted that none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal. By order dated 06.02.2020, the Tribunal dismissed the appeal and aggrieved by the same, the appellant is before us by way of this appeal raising the aforementioned substantial questions of law. 5.Mr.Hari Radhakrishnan, learned counsel appearing for the appellant after elaborately setting out the factual details and persuasively taking us through the order of the Adjudicating Authority dated 29.04.2017, as well as the order of the Appellate Authority dated 11.09.2017, submitted that the Tribunal failed to exercise the jurisdiction vested in it, as it has given only a prima facie finding regarding the involvement of the appellant in the alleged smuggling of gold and that the Tribunal, being the final fact finding authority, ought to have gone into the various submissions made by the appellant and the various evidences relied on by the appellant and given a final finding on the merits of the case. 6.Further, it is submitted that though written submissions were placed before the Tribunal, the same were not referred to and the decisions relied on were not considered and to that extent, the impugned order is a nonspeaking order. Further, the Tribunal failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Tribunal relied on certain calls alleged to have been made with Mr.Khaja on 04.03.2015 and 09.03.2015 and it is not known from where the Tribunal has produced the call records, as in Annexure-2 of the Order-in-Original, it nowhere mentions that the appellant spoke simultaneously to Mr.Khaja and Mr.V.S.Mathi Arasu. Further, the call records produced as Annexure-2 have been tampered to the extent that on 10.03.2015, four calls were received from mobile no.8056899163 for a total duration of 439 seconds only against the alleged duration of 1,02,589 seconds by the Tribunal to fabricate the story that Mr.Khaja spoke to Mr.V.S.Mathi Arasu in these calls on the appellant's mobile number. Further, the learned counsel elaborated upon the submissions, which have been referred to in paragraph G(II) of the grounds of appeal. Further, it is submitted that the call records relied on in the show cause notice is a printout given by the mobile service provider and this printout is an electronic evidence, which can be relied upon only if it is backed with a certificate as required under Section 138C of the Act. In this regard, the learned counsel placed reliance on the decision of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST [2019 (367) E.L.T. 142 (Bom)]; the decision of this Court Commissioner of C. Ex., Puducherry vs. CESTAT, Chennai [2018 (363) E.L.T. 110 (Mad)]. To support the proposition, that show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest, reliance was placed on the decision of the Hon'ble Supreme Court in Commissioner of C. Ex., Nagpur vs. Ballarpur Industries Ltd., [2007 (215) E.L.T. 489 (SC)]. With the above submissions, the learned counsel prayed for setting aside the order passed by the Tribunal and answering the substantial questions of law in favour of the assessee. 13.Mr.J.Vasu, learned Junior Standing Counsel appearing for the respondent/Revenue submitted that during the course of investigation, the appellant was very evasive and he did not cooperate with the DRI officers, when they recorded his statement. The unretracted statement dated 10.04.2015 of Mr.K.Chandrasekar of M/s.Win Shipping Logistics, engaged by Mr.Khaja through Mr.K.Francis for customs clearance of the impugned imported consignment of biscuits by M/s.Solai Exports Importers and Forensic Data Extraction reports in respect of the mobile number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the consignment of biscuits in 4 cartons, the two panchanama witnesses were continuously present at the spot of seizer for several hours without responding to call of nature. In any event, discovery of gold from the consignment has never been disputed by the appellant, nor any other person. 17.Further, the plea raised by the appellant that he should have been permitted to cross examine the panchanama witnesses is not a plea for delaying the disposal of the case and not genuine. In support of his submission, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in State of Kerala vs. K.T.Suaduli [AIR 1997 (SC) 162]. Further, it is submitted that in the statement given by Mr.K.Francis under Section 108 of the Act on 10.04.2015, Mr.K.Francis, who is the Field Officer of the company owned by the appellant, categorically confirmed that he knew the appellant for 15 years and he used to work as a driver for him and used to do all his personal and family works and the appellant, who was the owner of the Security Agency, which was deployed as Security Contractors in Air Cargo Complex and in the mean time, Mr.Khaja again approached Mr.K.Francis and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Magistrate has recorded the statements of A1 to A4 that their statements were obtained by threat and coercion, there was no specific denial of their involvement in the activity and nothing was stated before the Judicial Magistrate. 19.Further, it is submitted that the Adjudicating Authority explained very succinctly the modus operandi of the main accused and the involvement of Mr.K.Francis and Mr.P.Karunanithi from where, the role of the appellant starts and their statements would show that the appellant was aware of the smuggling of gold. It is further submitted that it is incorrect to state that the impugned order is a non-speaking order and a reading of the impugned order would show that the Tribunal has gone through the chain of events, which led to the illegal transactions coupled with the numerous phone calls inter se between the parties and has rightly concluded that the appellant is not over board. 20.Further, it is submitted that admittedly, the gold was liable to be confiscated in terms of Section 111(d) of the Act, as the same was sought to be imported or attempted to be imported and in terms of Section 111(i), it was found concealed and therefore, penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, as to whether the order is a perfunctory order, devoid of reasons, outcome of non-application of mind. Bearing this legal principle in mind, we have carefully gone through the order passed by the first appellate authority. The Commissioner (Appeals) from paragraphs 1 to 15, has set out the factual position as was placed before it by either side. In paragraph 16, the Commissioner (Appeals) discussed about the grounds raised by the appellant, viz., that he has been denied the right of cross examination, imposition of penalty is not legal, the order passed by the Adjudicating Authority is based on assumptions and presumptions and the retracted statements of Mr.K.Francis and Mr.P.Karunanithi have no evidence. The Commissioner (Appeals) also notes that the appellant had relied on judgments in support of the aforementioned four grounds. 26.The appellant was represented by his counsel, who appears to have reiterated the grounds and his request for giving written submissions was accepted and in paragraph 17, the Commissioner (Appeals) records the receipt of the written submissions on 04.08.2017 and states that it is essentially a compilation of documents referred to in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its truthfulness. 29.Further, the Commissioner (Appeals) notes that it is not in dispute that 6kgs of gold was concealed in the consignment of biscuits in four cartons. Further, the Tribunal notes that the facts recorded in the panchanama were corroborated by the statement of persons recorded under Section 108 of the Act, who were present during drawal of the panchanama. Further, after discussing about the entire factual matrix, the first appellate authority agreed with the Adjudicating Authority that the contention of the appellant that he was not permitted to cross examine the witnesses was not tenable. Thereafter, the Commissioner (Appeals) had considered the contention that the statements of the other witnesses were retracted. While dealing with the said issue, it has noted that there are extensive corroborative evidences, which clearly point towards the appellant. 30.The next point, which was considered, was with regard to the favouritism shown to the IEC holder, since the appellant contended that penalty should have been imposed on him also and after taking note of the facts and in the absence of a bill of entry being filed using the lent IEC, it held that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant, which fact has not been denied by the appellant. Further, the Tribunal has also taken a look on the call records between Mr.Khaja and Mr.V.S.Mathi Arasu and holds that from the beginning of March, 2015 all the three persons (including the appellant) were in touch. 33.The learned counsel for the appellant would argue that this was not part of the Order-in-Original. However, we find this appears to be incorrect because the Order-in-Original more particularly, from page no.50 onwards discusses about the call details and there is a pictorial matrix of the mobile phone contacts of the persons involved and in the pictorial matrix, the appellant was referred as Security Guard and there is elaborate discussion on the call details. The Tribunal after taking note of the facts recorded by the Adjudicating Authority has held that the appellant cannot wash off his responsibility with a total denial that he did not know Mr.Khaja at all and there was only a wrong call for about six seconds. Thus, after analysis of the entire factual position, the Tribunal concluded that the Revenue has made out a case by linking chain of events, phone calls etc., towards the scheme planned w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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