2024 (11) TMI 883 - AT - Customs

Customs duty demand on VKGUY scrips overturned due to improper use of Section 108 statements without cross-examination

The CESTAT New Delhi allowed the appeal challenging demand of duty foregone on VKGUY scrips. The appellant was accused of exporting meat using pre-signed ... Demand of duty foregone on account of the scrips of Vishesh Krishi and Gram Udyog Yojna[VKGUY] issued to u/s 28 of the Customs Act, 1962 Act read with their Letter of Undertaking - penalties imposed on individuals - allegation of appellant exporting meat using pre-signed and pre-stamped veterinary certificates - HAIL was engaged in slaughtering animals and exporting their meat during the relevant period. It availed the benefit of VKGUY scheme of the DGFT under which exporters of agricultural and village industry products are given an incentive in the form of scrips issued by DGFT which can be either used by the person to whom they are issued to pay duty on 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 which it contains as per section 138B under two situations- either the person is dead, cannot be found, is incapable of giving evidence or has been kept out of the way by the adverse party OR the person is examined as a witness and the court is of the opinion that it should be admitted as evidence. There is no other section in the Act which makes the statements relevant to prove the truth of the facts contained in them. In this case, the fact that blank signed and stamped certificates of veterinarian were recovered from the appellant has to be linked to the fact that meat was similarly exported using pre-signed certificates in the past. The evidence which provides this link are, according to the learned authorised representative 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. In this case, after extensive investigation spanning several years, the SCN was issued relying on as many as 22 documents including 14 statements of different persons recorded by the officers under section 108 of the Act. By not following the mandatory procedure under section 138B, the adjudicating authority brought to naught 14 of the 22 relied upon documents effectively destroying the case of the department. We do not find that the remaining 8 relied upon documents establish the fact that the appellant had exported meat using pre-signed and pre-stamped veterinary certificates. Once the case against HAIL is not established, the penalties on HAIL and other appellants also cannot be sustained. Therefore, the impugned order upholding the OIO cannot be sustained and needs to be set aside. Issues:Appeal against common order-in-appeal upholding OIO dated 26.10.2016, demand of duty foregone on VKGUY scrips, personal penalties imposed on individuals.Analysis:The appeals were filed challenging the order-in-appeal dated 03.7.2019, which upheld the OIO dated 26.10.2016 passed by the Additional Commissioner. The issues involved the demand of duty foregone on VKGUY scrips and personal penalties imposed on individuals. HAIL, engaged in exporting meat, availed VKGUY scheme benefits and was issued scrips worth Rs. 42,16,084/- which were sold to others. The Customs officers found blank Veterinary Health Certificates signed and stamped by a government veterinarian during a visit to HAIL's premises. It was alleged that HAIL fraudulently obtained VKGUY certificates by exporting meat with invalid certificates. Subsequently, a show cause notice (SCN) was issued proposing duty recovery and penalties.The main contention by the appellant's counsel was that the recovery of blank certificates did not prove that previous meat consignments were exported under invalid certificates. The counsel argued that the statements relied upon in the SCN were not relevant as the mandatory procedure under section 138B of the Act was not followed. The department, however, contended that the statements established that meat was exported using pre-signed certificates. The key issue was whether the statements recorded by officers under section 108 were admissible as evidence.The Tribunal analyzed the relevance of the statements under section 138B of the Act. The department's argument that the statements were relevant to prove the case was countered by the appellant's argument that the procedure under section 138B was mandatory and not followed by the adjudicating authority. The Tribunal held that the procedure under section 138B was mandatory and not limited to court proceedings. As the mandatory procedure was not followed, the case against the appellants could not be established.Consequently, the Tribunal set aside the impugned order, allowing all appeals with consequential relief to the appellants. The decision was based on the lack of proper adherence to the mandatory procedure under section 138B, rendering the case against the appellants unsubstantiated and the penalties imposed unsustainable.