9911796707
TMI Blog2022 (5) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... e same day, this appellant had made a call to Mohd. Khalil at 16.02 hrs and the tower location of Mohd. Khalil is outside Kolkata. Thus the allegation of the Revenue that on 24.11.2018 in the afternoon, this appellant was present in Nadia District near the Indo Bangladesh border, is without any basis and only by way of wild allegation, which is not substantiated and rather demolishes the evidences on record. So far the third allegation relied upon by the Revenue on fuel slip issued on 25.11.2018, the appellant had led the evidences at the time of adjudication proceedings, by filing the copy of the cash memo no.719 dated 25.11.2018 issued by ADCO Motor Pvt. Ltd., which was issued for filling the fuel in the vehicle No.WB 18 S6688 at 1416 hrs. for an amount of Rs.2824.21. Thus, reliance placed by the Revenue on the Teller /P.O.S. Slip for the same amount of the same date, and alleged that it was for filling the fuel in the seized vehicle, has got no legs to stand, is rather not on the basis of the facts on record. Although there is suspicion against this appellant on the basis of the statement of the co-accused, but in view of the aforementioned discussion, I find that the Revenue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for safe keeping. 5. Statement of Shri Balram Naiya @ Toofan was recorded under Section 108 of the Customs Act, 1962, wherein, he inter alia stated that he is resident of Bhadrakali, Uttarapara, Kotrang, Hooghly, West Bengal. He alongwith his friend, the other person - Shri Kaushik Kumar Das in vehicle Datson Go No. WB18 AA0605, which is owned by their friend, Sandeep Agnihotry, departed from Hoogly for Shirdi (Maharashtra) for delivery of six exotic tortoises, on the instructions of Debu resident of Bengaon, 24 Paragana (West Bengal) and Abhishek Kundu, resident of 31, Shibtala Lane, P.O. Bhadrakali, Uttarapara, Hoogly (West Bengal). He stated that as per his knowledge the tortoises originally belong to Desert of Africa and were brought to India illegally through Indo-Bangladesh International Border. 6. He also stated that in past also, he has transported wildlife animals and birds. Further, he received Rs.15,000/- for each trip for delivery of the tortoises, etc. 7. In the statement of Shri Kaushik Kumar Das, he inter alia, stated that he is resident of P.O. Konnagar, District- Hoogly, West Bengal and he is a driver by profession. He further stated that he along with his frien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, stated that he had stated some facts wrongly, which were recorded in the earlier statement on 28.11.2018. The correct facts are that Abhishekh Kundu called him telephonically on 25.11.2018 at 11 a.m., and when the appellant reached his house, he showed him six exotic tortoises there. Mr. Abhishekh Kundu offered him Rs.15,000/- for transporting these tortoises to Shirdi, Maharashtra on the same day, and directed him to hire a car and bring to his residence at 1.00 clock in the afternoon. Thereafter, he called Sudeep Agnihotry, brother of Sandeep Agnihotry to hire their car, to which Mr. Agnihotry agreed. Thereafter, he contacted Kaushik Kumar Das, who agreed to go with him for the money. Kaushik Kumar Das said that he would be fully prepared and arrive at Shibtala Petrol Pump at 3 p.m. At about 3 p.m., in the afternoon, he brought a car bearing registration No. WB18-AA 0605 (the actual owner - Sandeep Agnihotry) to residence of Abhishek Kundu. On the back seat of the vehicle, 6 exotic tortoises were kept hidden in a plastic bag. Thereafter, he started for Shirdi alongwith Kaushik Kumar Das. In the evening of 26.11.2018, at about 6 block, while passing through Seoni district ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue that on the basis of the call detail records and tower locations of mobile no.9163450744, appeared that this appellant had visited village Ayespur, Block Haringhata, District- Nadia, West Bengal, Border Area for receiving the delivery of six live exotic tortoises from one Mohd. Khalil. It also appeared that this appellant was in constant touch with Mohd. Khalil. Abhishekh Kundu (Mobile No.9163450744) was in constant touch with Mohd. Khalil on 24.11.2018. However, whereabouts of Mohd. Khalil could not be traced out. Further, this appellant had received those live tortoises and thereafter, kept the same at his residence situated at Shibtala Street and thereafter had engaged Balram Naiya for transporting those tortoises on 25.11.2018. It also appeared that this appellant had got the vehicle no.WB 18 AA 0605 fuelled and paid the amount of Rs.2,824/- on 24.11.2018 at 14:11 hrs vide his visa card, as has been evident from the payment slip of HDFC Bank-card swipe machine, installed at ADCO Motor Private Ltd.. It further appeared to Revenue that Balram Naiya alias Toofan was assisting this appellant in transporting the delivery of tortoises, who had take Kaushik Kumar Das as his as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiated with regard to the statements of the persons, such witnesses should be offered for cross examination. 24. In the facts of the present case the said witnesses were not examined viz. Balram Naiya and Kaushik Kumar Das, in the adjudication proceedings and further, in spite of request by this appellant, they were not produced for cross examination. Thus, no reliance can be placed on such statements, for not following the mandate of law. 25. So far the call detail records are concerned, ld. Counsel has filed the copy of the RUDs , which include call detail records , which are collected by the Revenue. Ld. Counsel demonstrates that as per call detail records, as made from Mohd. Khalid to this appellant on 24.11.2018 at 1815 hrs., the tower location of the appellant is at Kolkata. On the same day, this appellant had made a call to Mohd. Khalil at 16.02 hrs and the tower location of Mohd. Khalil is outside Kolkata. Thus the allegation of the Revenue that on 24.11.2018 in the afternoon, this appellant was present in Nadia District near the Indo Bangladesh border, is without any basis and only by way of wild allegation, which is not substantiated and rather demolishes the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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