2024 (1) TMI 472 - AT - Customs

CESTAT sets aside penalties in cosmetics smuggling case, orders fresh adjudication with proper cross-examination rights

CESTAT Ahmedabad set aside penalty orders against three appellants in a cosmetics smuggling case involving mis-declaration as printing paper. The tribunal ... Levy of penalty - illegal smuggling of cosmetics by mis-declaring the same as printing paper - HELD THAT:- The primary evidence is in the nature of detection of certain luxury goods concealed behind paper cartons. The entire case linking the role and knowledge of all the appellants namely Shri Tejas Narendra Mehta of Jaguar Shipping and Logistic Pvt Ltd, Shri Tony Fernandes and Shri Bharat Achare is based on the statements have been recorded of (1) Shri Rajesh MukhiaJee G- Card holder (2) Shri Tejas N. Mehta of M/s Samrat Shipping Agency, (3) Shri Babu ramji Bera the alleged importer Shri Bharat Achare of Jeguar Shipping And Logistics Pvt Ltd, Shri Karan Adhikrao Bamne, Shri Tony N. Fernandis Authorized Secretary/Director of M/s. Jaguar Shipping and Logistics Pvt Ltd. It is seen that prima facie no significant evidence has been gathered from the searches made in premises of the appellants. From the evidences, it is apparent that the SCN is largely based on the statements recorded during investigations. It is apparent that the statements cannot be relied without cross-examination of the witnesses. It will be necessary for the authorities to grant cross examination of all the witnesses before relying on their statements. The current order which has been relying very heavily on all these statements and that too without granting cross-examination cannot therefore be sustained. The order is therefore set aside and matter remanded to the original adjudicating authority to decide the issue a fresh - appeals are allowed by way of remand. Issues Involved:1. Mis-declaration and smuggling of cargo.2. Imposition of penalties under various sections of the Customs Act, 1962.3. Denial of cross-examination of witnesses.Summary:Issue 1: Mis-declaration and Smuggling of CargoThe case involved M/s. Sandeep Enterprises, which declared the importation of '75 GSM Printing Papers (Un-coated)' but was found to contain luxury items such as perfumes and cosmetics. The Directorate of Revenue Intelligence (DRI), Surat, examined the Bills of Entry and discovered the mis-declared goods. A Show Cause Notice (SCN) was issued to various individuals, including the appellants, calling upon them to explain why the goods should not be confiscated and penalties imposed under Sections 112(a), 112(b)(iv), 114A, and 114AA of the Customs Act, 1962.Issue 2: Imposition of PenaltiesThe order-in-original imposed penalties on various individuals and entities involved. Shri Baburam Bera was penalized Rs. 20 Lakhs under Section 112(a) and Rs. 15 Lakhs under Section 114AA. Shri Tejas N. Mehta faced penalties of Rs. 15 Lakhs under Section 112(a) and Rs. 10 Lakhs under Section 114AA. Rajesh Mahendra Mukhiyaji was also penalized Rs. 15 Lakhs under Section 112(a) and Rs. 10 Lakhs under Section 114AA. M/s. Sandeep Enterprises was not penalized under Sections 112(a) or 114AA. Jaguar Shipping and Logistics Pvt Ltd, along with its Director Shri Tony Fernandes and G-Card Holder Shri Bharat Achare, were each penalized Rs. 5 Lakhs under Sections 112(a) and 114AA.Issue 3: Denial of Cross-ExaminationThe appellants argued that the primary evidence against them was based on statements recorded during investigations, and they were denied the opportunity to cross-examine the witnesses. The learned Counsel for the appellants cited various case laws to support their argument that denying cross-examination was unjust. The Tribunal noted that the case relied heavily on these statements and that the denial of cross-examination was not justified. The Tribunal referenced Section 138B of the Customs Act, which allows statements to be used as evidence only under certain conditions, and emphasized the need for cross-examination to ensure fairness.Conclusion:The Tribunal set aside the order-in-original, stating that the reliance on statements without granting cross-examination could not be sustained. The matter was remanded to the original adjudicating authority to decide the issue afresh after allowing the cross-examination of the witnesses. The appeals were allowed by way of remand.(Pronounced in the open Court on 09.01.2024)