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TMI Blog2024 (11) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... the department ORDER P. V. SUBBA RAO All these appeals have been filed to assail the common order-in-appeal dated 03.7.2019 impugned order passed by the Commissioner (Appeals), whereby he upheld the Order in original OIO dated 26.10.2016 passed by the Additional Commissioner in denovo proceedings deciding the proposals made in the show cause notice SCN dated 4.8.2011. 2. M/s. Hind Agro Industries Ltd. HAIL filed Customs Appeal No. 52892 of 2019 to assail the demand of an amount of Rs. 42,16,084/- being the amount of duty foregone on account of the scrips of Vishesh Krishi and Gram Udyog Yojna VKGUY issued to it under section 28 of the Customs Act, 1962 Act read with their Letter of Undertaking. It is also aggrieved by the penalty of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Officers of the Customs (Preventive) visited the premises of HAIL on 30.10.2010 and recovered several documents under a Panchnama, including a bunch of blank Veterinary Health Certificates signed and stamped by the Government Veterinary doctor Dr. Shiv Kumar. These certificates were supposed to be issued by the Veterinarian after pre-mortem as well as post-mortem examination of the animals. Instead, these certificates were found without the details of the animals and the dates. HAIL could easily fill the details and use them. Effectively, the Veterinarian's certificates of the animals which ensure the health of the consumers of the meat were issued without any examination or even looking at the animal or even identifying the animal to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eterinarian without examining the animals pre-mortem and post-mortem. As far as the statements enclosed as relied upon documents in the SCN are concerned, they are not relevant to prove the case against the appellant because the mandatory procedure under section 138B of the Act was not followed by the adjudicating authority nor were they allowed to be cross-examined. 15. On this point, learned authorised representative submitted that it was established that the meat which was exported by the appellant before the panchnama was also exported using pre-signed and pre-stamped certificates of the veterinarian without examination of the animals pre-mortem or post-mortem. When the veterinarian who signed and stamped blank certificates was questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnama drawn at Aligarh on 30.10.2010 RUD 4- Panchnama drawn at the premises of CEO of the appellant. RUD 5- Statement of Dr. S P Fonglan, Deputy General Manager, Production at Aligarh RUD 6- Statement of Dr. Omvir Singh, Veterinary Doctor at Aligarh RUD 7- Statement of Shri Mohd. Nissar Ahmed in-charge of export documentation recorded on 30.10.2010 RUD 8- Statement of Shri Mohd. Nissar Ahmed recorded on 15.06.2011 RUD 9- Statement of Shri Sanjay Agarwal DGM Exports, recorded on 30.10.2010 RUD10- Statement of Shri Mazhar Yasin on 12.11.2010 RUD 11-Statement of Shri Rajesh Kumar General Manager recorded on 12.11.2010 RUD 12- Statement of Shri Hasrat Ali, Deputy Manager recorded on 30.10.2010 RUD 13- Statement of Shri Anil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no other section in the Act which makes the statements relevant to prove the truth of the facts contained in them. Section 138B reads as follows: 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 the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evidence or assertion that the situation under section 138B(1) (a) of the Act was present and the adjudicating authority did not follow the procedure prescribed under section 138B(1) (b). He neither examined the persons who made the statements nor allowed the appellant to cross-examine them. 22. Learned authorised representative submitted that the procedure under section 138B(1) applies to only to court proceedings and in other proceedings, as per section 138B(2), it only applies 'in so far as it may be' which means that the adjudicating authority has the discretion of following the procedure under section 138B or admitting the statements as evidence without following it. This submission cannot be accepted. The expression 'in so far as i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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