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TMI Blog2024 (11) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... been arranged through Anagadia and had reached Mundra. In addition to the statement of Shri Mayur Mehta, Shri Ankit Travadi, Shri Chirag Taavadi and Shri Nasir Khan, there are some Audio clips/voice message retrieved from the mobile phone of Shri Nasir Khan which show that Shri Nasir khan and Shri Mayur Mehta sent big amount of illegal gratification to the Customs Officers at Mundra. We find that in the present matter even after the request of appellant for cross-examination of these persons/witnesses and panchas, were not offered. In such circumstances we find that their statements are not reliable evidence against the Appellant. The adjudicating Authority has not examined the persons who have given the statements which have been relied upon to implicate the appellant. Also, no opportunity of cross-examination was given to the appellant to question the basis on which the co-accused has implicated the appellant in this case. When the procedure set out in Section 138B is not followed, the statement of the co-accused has no evidentiary value. Also, in this case the statement of the co-accused has not been corroborated by any other evidence. Except the bald allegation that Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk as Superintendent of Customs, SIIB, Mundra. DRI had received some information in regard to the imports made by M/s. Crescent Traders. Following the same, they detained imported goods after the said importer had filed Bill of Entry and out of charge was given by the Customs Authorities. It was found that the goods were mobile accessories viz. mobile screen guard, USB cable, mini speakers, selfie stick for mobile, USB lock connector, etc. The declared value in the Bill of Entry was Rs.14,87,806/-. The case against the main importer M/s. Crescent Traders is that (i) the goods were highly undervalued. The correct value would be around Rs.4.31 Crores as per E-Commerce Website, (ii) the said cell phone accessories were counterfeit of original, (iii) the provisions of BIS were not complied and (iv) in regard to some goods relevant provisions of WPC (Wireless Planning and Coordination) Wing of the Ministry of Communications were not followed. During the course of investigation, various panchnamas were drawn and statements of various persons were recorded. After the detail investigation, show cause notice was issued to various other persons including the Appellant. In adjudication, vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to permit him to cross examine Shri Ankit S. Travadi and other persons. However, the said request of the appellant was not considered. Had there been an opportunity of cross examination, it would have been clear that Ankit Travadi had made a false statement and that in fact no demand at all was made by the appellant herein. It is a settled law that when no cross examination is afforded, the statement of witness loses its evidence value. He placed reliance on the judgement of Hon ble Supreme Court of India in the case of M/s. Andaman Timber Industries V/s. Commissioner of C.Ex., Kolkata II, reported at 2015 (324) ELT 641 (S.C.). 2.3 He also submits that it is wrongly concluded by the Adjudicating Authority that Appellant had handed over file to a private person. The so-called person which is referred by the Adjudicating Authority is Ankit Travadi. The file which is referred by the Adjudicating authority is a part of Relied upon documents. A perusal of the said file would show that it contained documents such as Bill of Entry, packing list, invoices, duty payment challan, CFS Gate Entry Slip, etc. pertaining to the bill of entry in question. There is nothing secret in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements which have been relied upon to implicate the appellant. Also, no opportunity of cross-examination was given to the appellant to question the basis on which the co-accused has implicated the appellant in this case. When the procedure set out in Section 138B is not followed, the statement of the co-accused has no evidentiary value. Also, in this case the statement of the co-accused has not been corroborated by any other evidence. We also observed that the Tribunal in Arvind Kumar v. CC, New Delhi, 2001 (136) E.L.T. 439 (Tri.-Del.). held as under:- statement of importer implicating the officer without corroboration by any other record does not prove abetment-penalty on customs officer not imposable under Section 112(b) of Customs Act, 1962. It was also held in the said case that person giving differing versions or facts which also at variance with record cross-examination of such a person necessary. In the instant case, the main accused i.e., Abdul Sathar has not at all appeared for personal hearing and hence he could not be cross-examined. Consequently there is no corroboratory evidence implicating Shri Santosh Talpade as held in the said case law. Further it is undispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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