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TMI Blog2024 (1) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping and Logistics Pvt Ltd. It is seen that prima facie no significant evidence has been gathered from the searches made in premises of the appellants. From the evidences, it is apparent that the SCN is largely based on the statements recorded during investigations. It is apparent that the statements cannot be relied without cross-examination of the witnesses. It will be necessary for the authorities to grant cross examination of all the witnesses before relying on their statements. The current order which has been relying very heavily on all these statements and that too without granting cross-examination cannot therefore be sustained. The order is therefore set aside and matter remanded to the original adjudicating authority to decide the issue a fresh - appeals are allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... amji Bera in cash. The said account was found to be in name of Samrat Shipping Agency and Shri Tejas Mehta's mother is the proprietor of M/s. Samrat Shipping Agency. The custom duty for the clearance of Bill of Entry No. 6611719 filed by M/s. Sandip amounting to Rs. 3,10,449 on 16.09.2016 was paid through the said account. It was also alleged that the duty for Bill of Entry No. 6419171 dated 19.08.2016 filed by M/s. Sandip amounting to Rs. 3,10,449/- on 16.09.2016, was also paid through Dena Bank Account No. 002111002149 of Shri Tejas N. Mehta. In the said statement, Shri Tejas Mehta had admitted that it was his fault that he did not asked Shri Babu Ramjee Bera to get IEC in his own name and to pay customs duty from his own Bank Account. He also admitted that he used to go to ICD Ankleshwar, and ICD Supratnama for clearance of goods imported by M/s. Sandip though he was aware that only authorized person can enter the ICD premises and he did not obtain any special permission to enter in ICD premises. It was also found that there were E-mail communication between Shri Tejas Narendra Mehta and Shri Rajesh Mukhiyaji G- Card holder of Jaguar Shipping and Logistic Pvt Ltd regarding the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained as the details are available in DGFT website as genuine. In this background, learned Counsel sought relief. 2.6 Learned Counsel appearing on behalf of the appellant Jaguar Shipping and Logistics Ltd, Shri Tony N. Fernandes and Shri Bharat Achare pointed out that there is no direct role of the appellants in the import of goods. It has been argued in the impugned order that the appellant had failed to verify the business premises of the importer M/s. Sandeep at Thane, Pune and Ahmedabad. He argued that from the order-in-original, it is seen that linkage with the importers namely Shri Babu Ramji Bera and Shri Tejas N. Mehta has been made without any evidence. 2.7 The SCN alleges that Shri Rajesh Mukhiyajee G-Card Holder had given contradictory statements. On the one hand in his statement dated 21.03.2018 had stated that Babul Ramji Bera never gave copy of transfer letter/Sale letter of Script/license, but he must be having it and he has never submitted transfer letter/sale letter of script/license to customs at the time of clearance as no customs officer asked for it. In another statement, he stated that he had submitted all licenses/script/Xerox copies out of charge in fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 114AA of the Customs Act. On Rajesh Mahendra Muhiyaji, the order-in-original imposes penalty of Rs. 15 Lakhs under Section 112(a) of the Customs Act and Rs. 10 Lakhs under Section 114 AA of the Customs Act. 3.1 The order-in-original does not impose any penalty on M/s. Sandeep Enterprise either under Section 112(a) or Section 114AA of the Customs Act, 1962. The order in original imposes penalty of Rs. 5 Lakhs under Section 112(a) and Rs. 5 Lakhs under Section 114AA on Jaguar Shipping and Logistics. The order in original imposes penalties of Rs. 5 Lakhs under Section 112(a), and Rs. 5 Lakhs under Section 114AA of the Customs Act on Shri Tony and Fernandes. The order in original imposes penalty of Rs. 5 Lakhs under Section 112(a) and Rs. 5 Lakhs under Section 114AA of the Customs Act on Shri Bharat Achare. 4. Learned AR relied on the impugned order. 5. We have gone through the rival submissions. We find that the primary evidence is in the nature of detection of certain luxury goods concealed behind paper cartons. The entire case linking the role and knowledge of all the appellants namely Shri Tejas Narendra Mehta of Jaguar Shipping and Logistic Pvt Ltd, Shri Tony Fernande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of india. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and Imposition of penalty. There is no ground warranting reduction of fine." 10.7.2 A Constitution Bench of Apex Court of India in the matter of Romesh Chandra Mehta v. State of W.B. (1969) 2 SCR 461 AIR 1970 SC 940, held that the Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling and for that purpose they are invested with the power to search any person on reasonable suspicion, to summon, X-ray the body of the person for detecting secreted goods to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act, to obtain a search warrant from a Magistrate to collect information by summoning persons to give evidence and produce documents and to adjudge confiscation He may exercise these powers for pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (SC), relying on various judgments of Apex Court of reported as AIR 1972 SC 1224, 2000 (120) ELT 280 (S.C); 1999 (110) ELT 324 (S.C.); 1992 (60) ELT 24 (S.C.); 1999 (110) ELT 309 (S.C.); 1983 (13) ELT 1443 (S.C.); 1983 (13) ELT 1590 (S.C.), has further held that confessional statement recorded by Custom officer under Section 108 of Customs Act, 1962 are not required to follow safeguards provided under Section 164 of the Code of Criminal Procedure, 1973. 10.8.1 In view of the above, the statements under the present proceeding are material piece of evidence to establish the case for Revenue. Apex Court in the case of Kl. Pavunny Vs AC Cochin reported as 1970 (90) ELT 241 (SC) has held that when the material evidence establish fraud against the revenue, white collar crimes committed under absolute secrecy shall not be exonerated from penal consequence of law. Enactments like Customs Act, 1962, are not merely taxing statute but are also potent instruments in the hands of the Government to safeguard the interest of the economy. Preponderance of probability comes to rescue of Revenue and revenue is not required to prove its case by mathematical precision. The Supreme Court has obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty." 5.3 In the facts of the case, it is apparent the role of each person involved has been decided primarily on the basis of the statements. Section 138B of the Customs Act reads as follows: SECTION 138B. Relevancy of statements under certain circumstances. -- (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of th ..... 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