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TMI Blog2025 (3) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... lists of shipping bills on the basis of said documents and thereafter filed the same with the customs authority at ICD, TKD. This deposition clarifies that none of the ingredients of attempt appears to be fulfilled as against the appellant. There is no denial of the department that the detained consignment was tallying in quantity with the packing lists submitted along with the shipping bills. Overvaluation - HELD THAT:- The appellant in his statement has deposed that he is not aware regarding the actual value of the goods, however he accepted that supplier had overvalued the exported goods. In addition, he deposed that he was getting 1% of the IGST/Drawback from the exporters in cash in lieu of preparing export documents of the goods which were overvalued by them. However, except the said deposition, there is no corroborative evidence produced by the department to show the receipt of the said amount by the appellant as an additional amount to his professional charges and nor to show that the appellant had knowledge of overvaluation being done by the exporters prior filing the shipping bills. No doubt the department has taken the stand that admissions need not to be proved but it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, being the proprietor of CHA M/s. Brightline (C&F) Agency. The show cause notice not only proposed the confiscation of the impunged goods, the penalty on both the co-noticees but proposed the penalties on appellant also under section 114 (iii) and 114AA of custom Act, 1962. The proposal was initially confirmed vide Order-in-Original no. 49/2020 dated 13.09.2020. The appeal against the said order has been rejected. Being aggrieved the appellant is before this tribunal. 2. I have heard Shri Amar Kumar Sinha, learned Consultant for the appellant and Shri Rohit Issar, learned Authorized Representative for the respondent. 3. The learned consultant for the appellant mentioned that the Commissioner (Appeals) has imposed penalties on the appellant without appreciating the facts and circumstances of the case and submissions made by the appellant. Thus, the order against the appellant is arbitrary. In para 5.3 of the impugned Order-in- Appeal, Commissioner (Appeals) erred in giving incorrect factual observation that it was at appellate stage that the statement dated 22.05.2019 was contended by the appellant to not to be voluntary. It is impressed upon that the submission with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only this, there has been an admission of appellant that he used to receive 1% of the IGST/Drawback from the exporters, in cash, in lieu of preparing their export documents of the goods which were overvalued by them. Thus he was aware that the goods presented for export by the said three exporters were very low grade and were also grossly overvalued in their documents. The findings in the order under challenge are based upon the said admission. It is submitted that admissions need no further proof. Hence there is no infirmity in imposition of penalty upon the present appellant. 5. Having heard both the parties and perusing the records, I observe and hold as follows: 5.1 I observe that the appellant has been involved in an investigation against the overvalued export of LED Flash Light Torch, appellant being the Customs House Agent for those exporting firms. The penalty upon the appellant has been imposed under Section 114(iii) and 114AA of the Customs Act, 1962 i.e. for attempting to export goods improperly and for use of false and incorrect material respectively. Foremost I observe that 'attempt' ordinarily means an intent combined with an act falling short of the thing intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be proved but it has also been the settled proposition of law that such admissions which are voluntary and does not get vitiated on account of any of the premises envisaged Section 24 of the Evidence Act are admissible as cogent evidence. 5.5 Hon'ble Supreme Court in the case of Asstt. Collr. Of C. Ex., Rajamundry Vs. Duncan Agro Industries Ltd. reported as 2000 (120) ELT 280 (SC) has held that the inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non-police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings. 5.6 The Hon'ble Supreme Court also appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the officer of a gazetted rank, during the course of enquiry or proceeding under the act, shall be relevant for the purpose of proving the truth of the facts contained therein provided that the person making the said statement has been examined by the adjudicating authority. Section 9D came in for detailed consideration and examination by Hon'ble Delhi High Court in the case titled as J.K. Cigarettes Ltd. Vs. CCE reported as 2009 (242) E.L.T. 189 (Del.), it has been held that in absence of the circumstances specified in Section 9D(1), the truth of the facts contained in any statement recorded by the gazetted officer is not admissible into evidence. The evidentiary value of the statement insofar as proving the truth of the contents thereof, gets lost completely. This decision has been followed by Hon'ble High Court of Punjab and Haryana in the case of Jindal Drugs Pvt Ltd Vs. Union of India reported as 2016 (340) ELT 67 (P&H). 5.9 In the light of the said discussion and that the statement of Shri Mali Ram Agarwal has not stood the test of Section 138B of the Customs Act, also that the appellant has objected his statement recorded under Section 108A as involuntary, recorded u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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