TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 64
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of Shri Sanjaybhai under fictitious name of Anuj Shah. That for taking delivery the Bilty and letter from Bhatia Chemicals for receiving delivery was handed over to him by a unknown person of Shri Sanjaybhai. He also stated that in past also he has taken delivery of consignments from Chaudhary Roadways. That in case of present parcel, he was told to rebook the same parcel in Surat-Ahmedabad Transport Co. GIDC, Vapi and handover invoice of M/s J.B. Enterprise to the transport company. Residential premises of Shri Sanjaybhai and his office premises were also searched but no incriminating papers were found. The test examination of samples revealed that the goods were "Ketamine Hydrchloride" whose export requires No Objection Certificate from the Narcotics Commissioner. Statement of Shri Nandkishore Rupchand Choudhary, Proprietor of M/s Choudhary Roadways was also recorded who stated that in past six consignments of M/s Perfect Chemicals were transported by them. Earlier consignments were also collected by Shri Jayeshbhai Chunibhai Vadaliya. Statement of Aurangabad Branch incharge of M/s Choudhary Roadways Shri Rameshwar Amarsingh Takale was also recorded wherein he stated that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llegation of export of 165 Kgs of goods is baseless and hypothetical as there is no evidence as to when the said quantity was exported, by what name and by what mode and to which country or atleast the dates on such exports were made. The adjudicating authority has not taken into consideration the retraction of statements before the Jailor which was submitted before Chief Judicial magistrate on 04.07.2009. The emails relied upon by the revenue was collected from unknown source which were not provided by the Appellants nor they had any relation with any company. They have no business relation with Shri Jayesh who had gone to the transporter to collect the goods nor had asked him to take delivery. No incriminating documents were found from any of the premises relatable to them. They never claimed ownership of 25 Kgs of Ketamine seized from Chaoudhary Roadways. The person Shri Jayesh who was caught dealing with said consignment was not even issued show cause notice and was set free. He point out the discrepancy in statement of Shri Jayesh. That in his statement dt. 06.03.2009 he stated that he was given lorry receipt by unknown person but in his statement dt. 11.08.2009, he stated tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted consignments were delivered door-to-door in USA, but none of the documents were available as the same were destroyed and therefore the allegations cannot be proved. The order has been passed by relying upon the hearsay based on statements and not on any evidences or any report from the foreign countries where the goods were alleged to have been sent. The adjudicating authority has relied upon emails and computer printouts but the Appellant has denied that the emails belong to them, The appellant never has taken any amount from Vijaybhai of Rajkot who in his statement that he had withdrawn amt from Western Union Bank and handed over to Appellant. That the procedure given under Section 138 C of the Customs Act was not followed for taking printouts as evidence. None of the condition given in Section 138 (2) was followed. There is no certificate from person who had operated and was in incharge of the computer. The entire allegations are based on statements which were taken under duress and later retracted and secondly on various printouts of courier agencies, Western Union Money changers and many other without any corroborative evidences. It is nowhere appearing how the goods were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y aware of activities of his brother. 5. I find that though the show cause notice and the adjudicating authority has relied upon the statements of Shri Jayesh Vadaliya or the courier companies or the persons who received the money in their account on such sale, but nowhere it is appearing as to when the goods were exported by Appellant. Even after investigation at courier company, there is no findings as what is the mode of export and to which country the exports were made. It is alleged that the Appellant had received 165 Kgs of Ketamine in past. The show cause notice alleges that the goods were sent by Shri Rajesh Joshi to Shri Sanjay and that Shri Rajesh Joshi was introduced to Shri Sanjay by Shri Nagesh Barsale. Shri Rajesh Joshi who has allegedly supplied such goods cannot be even traced by the investigating officers inspite of the fact that Shri Nagesh Barsale was knowing him. The Appellant has agitated the allegation of receipt of impugned goods. It is also a fact that neither the Incharge of Choudhary Roadways at Surat nor Shri Choudhary at Vapi knows Shri Sanjay. In such a case it was necessary to find the source who had supplied the alleged quantity to the Appellant. Onl....