Appeal allowed in exotic tortoise smuggling case due to unreliable evidence and witness examination failures

CESTAT New Delhi allowed the appeal in a smuggling case involving exotic live tortoises from Africa transported through Bangladesh. The tribunal set aside confiscation and penalty orders against the appellant, finding that the Revenue's evidence was unreliable. Key witnesses were not examined or produced for cross-examination, violating legal mandates. Call detail records contradicted Revenue's claim that appellant was present at Indo-Bangladesh border during the alleged incident, showing appellant was in Kolkata instead. A fuel slip evidence was also found baseless as appellant provided contradictory documentation. The tribunal held that co-accused statements cannot be relied upon without corroborative evidence, citing Supreme Court precedent, and dismissed the charges as wild allegations lacking cogent basis.

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Issues Involved:
1. Imposition of penalty u/s 112(b)(i) of the Customs Act, 1962.
2. Admissibility and reliability of statements of co-accused.
3. Validity of call detail records as evidence.
4. Relevance of fuel slip as evidence.

Summary:

Issue 1: Imposition of Penalty u/s 112(b)(i) of the Customs Act, 1962
The appellant, Abhishek Kundu, was penalized Rs.30 lakhs u/s 112(b)(i) of the Customs Act, 1962, for his alleged involvement in the smuggling of six exotic 'African Spurred Tortoises'. The Joint Commissioner, Customs, Indore, ordered the absolute confiscation of the tortoises and the vehicle used for transportation, and imposed penalties on the appellant and two others.

Issue 2: Admissibility and Reliability of Statements of Co-accused
The Revenue relied on statements from co-accused Balram Naiya and Kaushik Kumar Das. However, these statements were not examined in the adjudication proceedings as mandated u/s 138B of the Customs Act. The appellant's request for cross-examination was denied, making the statements inadmissible.

Issue 3: Validity of Call Detail Records as Evidence
The Revenue alleged that the appellant received the tortoises in Nadia District based on call detail records. However, the appellant demonstrated that his tower location was in Kolkata at the relevant times, contradicting the Revenue's claims. The Tribunal found these allegations to be baseless and unsubstantiated.

Issue 4: Relevance of Fuel Slip as Evidence
The Revenue claimed that a fuel slip indicated the appellant arranged transportation for the tortoises. The appellant provided evidence showing the fuel slip was for a different vehicle, discrediting the Revenue's claim. The Tribunal found no basis for this allegation.

Conclusion:
The Tribunal concluded that the evidence against the appellant did not stand the test of scrutiny and were wild allegations without cogent basis. The appeal was allowed, and the impugned order was set aside concerning the appellant.

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