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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 ..... n imports or transferred or sold to others who can use them to pay duty on imports. What is the meaning of the term relevant? - HELD THAT:- The undisputed fact is that the recovered pre-signed and pre-stamped certificates were not used to export meat. The case of the department is built on the premise that previous meat consignments were also exported based on such certificates without actual inspection of the animals pre-mortem and post-mortem. After detailed investigation beginning on 3.10.2010 and culminating in the SCN issued on 4.8.2011, these allegations were made and actions against the appellant proposed. SCN relied upon the following 22 documents numbered relied upon documents RUD-1 to RUD-22. As many as 14 of the 22 relied upon documents are statements of various persons recorded during investigation by the Customs officers under Section 108 of the Act. Of these, the statements of Dr Shiv Kumar, the veterinarian and a few others are said to establish the fact that the appellant had exported meat in the past without actual examination of the animals by the veterinarian. Any statement made before any gazetted officer of customs is relevant to prove the truth of the fact whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20,00,000/- imposed on it. 3. Shri Anil Vanjani Anil filed Customs Appeal No.52891 of 2019 to assail the personal penalty of Rs. 4,00,000/- imposed on him. 4. Shri Kaleem Khan Kaleem filed Customs Appeal No. 52888 of 2019 to assail the personal penalty of Rs. 2,00,000/- imposed on him. 5. Shri Nisar Ahmad Nisar filed Customs Appeal No. 52889 of 2019 to assail the personal penalty of Rs. 4,00,000/- imposed on him. 6. Shri Mazhar Mazhar filed Customs Appeal No.52890 of 2019 to assail the personal penalty of Rs. 4,00,000/- imposed on him. 7. Shri Naseem Qur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions have been made by both sides. The most important submission made by the learned counsel for the appellant is that while it is true that books containing several blank Veterinary Health Certificates signed and stamped by Dr. Shiv Kumar were recovered from the premises of the appellant, these would only show that the appellant could have used them to clear meat without the veterinarian examining the animals pre-mortem and post mortem and certifying it. The appellant could have filled in the details of the animal on the certificates which were already signed and stamped by the veterinarian. However, this recovery does not prove that the consignments of meat exported before the date of the panchnama were also exported under the cover of certificates issued by veterinarian 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral 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 Vanjani, CEO recorded on 15.03.2011 RUD 14- Statement of Shri Naseem Qureshi recorded on 27.04.2011 RUD 15- Statement of Dr. Jeevan Singh, recorded on 2.11.2010 RUD 16- Statement of Dr. Abdul Majid, Veterinary officer recorded on 24.11.2010 RUD 17- Statement of Dr. Shiv Kumar recorded on 30.11.2010 RUD 18- Statement of Dr. Rudra Pratap Singh, Director recorded on 21.01.2011 RUD 19- Letter written to The Secretary, Animal Husbandry, Government of Uttar Pradesh 10.11.2010 RUD 20- Letter from Director, Animal Husbandry dated 11.01.2011 RUD 21- A copy of the letter dated 1.2.2011 from CVO, Ghaziabad RUD 22- Letter from M/s. HAIL with copies of applications submitted to APEDA 18. As many as 14 of the 22 relied upon documents are statements of various persons recorded during investigation by the Customs officers under Section 108 of the Act. Of these, the statements of Dr Shiv Kumar, the veterinarian and a few others are said to establish the fact that the appellant had exported meat in the past without actual examination of the animals by the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue, the statements recorded by the Officers under section 108 of the Act and relied upon in the SCN. However, as per section 138B of the Act, they can be relevant only in one of the two situations indicated in 138B (1) (a) and (b). There is no 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 it may be only means that where certain terms in section 138B(1) do not apply to the proceedings referred to under 138B(2), such terms may be substituted. For instance, the term court will not apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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