TaxTMI 
TaxTMI 
2019 (5) TMI 1518
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....referred to as 'Customs Act') Brief facts of the case are that acting on an intelligence the Directorate of Revenue Intelligence (hereinafter referred to as DRI), regarding that M/s AMP Enterprises, WZ/25D-2, Shop No. 3 Ground Floor, Krishan park, Tilak Nagar, New Delhi (hereinafter referred to as importer) has imported restricted items, by concealment in the two containers bearing Nos. CRXU1551372 and GCUU3009545, the clearance of aforesaid two containers were stopped and these containers were re-examined by the officers of DRI, which was earlier assessed and examined by the officers of Inland Container depot (ICD). Scrutiny of import documents revealed that these consignments have been imported vide Bill of Entry No. 9865457 dated 16/0....
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....nversations. In his statement, dated 5/09/2013, the appellant stated that though voice in audio files at certain places could be his, however, he categorically denied having met Shri Rupender Singh Chadha any time. The DRI latter obtained the voice sample of Shri Rupender Singh Chadha and that of Respondent and forwarded them for further investigation to CFSL for matching of the voice found in the audio files extracted from I-phone 5 as stated above. On completion of investigation, the impugned Show Cause Notice dated 17/04/2014 was issued to the respondent for imposition of penalty under Section 112 of Customs Act, 1962. In adjudication proceedings the charge of imposition of penalty on the respondent was dropped by the Adjudicating Author....
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.... that the respondent has never been involved in assessment or examination of the detained consignment. In respect of reliance placed on the voice recording, allegedly found in the printout taken from I-phone 5 surrendered by Shri Rupender Singh Chada, learned advocate submitted that those are unreliable, unsubstantiated and incoherent and hence not admissible piece of evidence, so as to penalise respondent under Customs Act. 5. His submissions in respect of audio recording are as under; (i) Shri Rupender Singh Chadha in his statement recorded on 05.08.2013 (RUD-38 to the SCN) had categorically stated that he did not recognize any of the voice. (ii) The said mobile phone was forensically examined on 13.06.2013 by one cyber expert Sh....
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....ion is between two persons or more than two and also despite of Shri Rupender Singh Chadha's voice sample having been taken did not give any opinion about the presence of his voice in the audio files extracted from I-phone. (vii) The report is also conspicuously silent regarding the query of date of the recording but has opined that the audio file was modified on 30.07.2013 at 15.11 hrs. (viii) Contrary to finding of CFSL regarding non-intentional editing in the audio file, the respondent had obtained a report from independent expert, who after audiometric examination, had opined that the said audio clips were infact tampered with. Ld. Commissioner, however, has rejected that report on the sole ground of having been obtained by a priv....
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....oner. Thus there were no direct or indirect role of the appellant in getting the impugned consignment cleared from the Customs. Therefore, Ld. Commissioner has rightly held that no case of imposition of penalty under Section 112 of Customs Act, 1962 was made out against the respondent. 8. Herd the parties and perused the appeal records. 9. As both the sides have heavily relied upon the audio conversation extracted from the I phone 5 belonging to Shri Rupender Singh Chadha , we have carefully examined the facts regarding recovery of said phone; retrieval of the audio file from the said phone; CFSL report; and the transcripts alleged a conversation found therein. We have also perused the finding of Ld. Commissioner in respect of said au....
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.... that the statement clearly depicted respondent's involvement in clearance of contraband goods, R-22 gas. We have perused the said paragraph in Review Order and also paragraph 34.2 of Show Cause Notice and find that averments in both the paragraphs relate to incidents after the import and seizure of subject goods and do not in any manner prove that respondent was instrumental in import or clearance of subject goods. Otherwise also, in our opinion, holding the respondent guilty on the basis of audio recording is beyond justification as even Shri Rupender Singh Chadha in whose phone recordings were found, has not recognized the voice or context of said recording. The retrieval was not made in presence of independent witness and the report of ....