TaxTMI 
TaxTMI 
2021 (3) TMI 1138
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....law for consideration:- "i. Whether the first respondent authority and the Tribunal is correct in holding that the charges of Section 112(a) of Customs Act, 1962 is made out in the facts and circumstances of the case against the appellant, warranting imposition of penalty? ii. Whether the Hon'ble Tribunal had erred in relying upon retracted statements of the co-accused particularly when at the time of remand the Hon'ble Magistrate had specifically noted that the statements were recorded under threat and coercion? iii. Whether the Hon'ble Tribunal had erred in relying upon retracted statements of the co-accused without independent corroboration in view of the decision of this Hon'ble Court in D.V.Kishore vs. CC (Seaports-Imports), Chennai reported in 2017 (350) ELT 527 (Mad)? iv. Whether the Hon'ble Tribunal has traversed beyond the show cause notice by relying upon certain call records which were not relied upon in the show cause notice issued to the appellant under Section 124 of the Customs Act, 1962? v. Whether the Hon'ble Tribunal had erred in relying upon the alleged call records without the actual subject ma....
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....be imposed on each of the noticees under Section 112 of the Act and also under Section 114AA of the Act separately. 4.4.The appellant submitted his reply on 02.12.2015, denying the allegations levelled against him, stating that he has absolutely no connection whatsoever with the case and there is not even an iota of material evidence placed by DRI pointing out the appellant's involvement with the gold alleged to have been seized and he has been implicated in the case without evidence and with mala fide intention. Further, the appellant stated that he has no connection whatsoever with either the gold bars or the biscuits, he has not seen 1kg gold bar in his life and that he is not the owner of the gold bars. Further, it was submitted that Section 114AA of the Act would have no applicability to the appellant, as there was no transaction of business by the appellant for the purposes of the Act and the appellant has not made any declaration or statement of document in the transaction of the business. 4.5.With regard to the proposal to levy penalty under Section 112 of the Act, it was submitted that the show cause notice is not specific as to under which sub-Section of Section....
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....eals) partly allowed the appeal by confirming the penalty to be under Section Section 112(a) of the Act and vacated the penalty under Section 114AA of the Act. 4.9.Aggrieved by such order, the appellant preferred appeal before the Tribunal contending that Section 112(a) of the Act would not be applicable to the appellant. The penalty imposed solely based on the retracted statements of the co-accused is contrary to the settled legal position. Relying upon the statement of the co-accused, which is not inculpatory of person making the statement, is bad in law. The finding of the first appellate authority in paragraph 18.2.1 of the order dated 11.09.2017 is that there are extensive corroborative evidences in the form of call records, the forensic report and unretracted statements of Mr.V.S.Mathi Arasu are contrary to facts and not supported by material evidences. Written submissions were also placed for the consideration of the Tribunal. By order dated 06.02.2020, the Tribunal dismissed the appeal and aggrieved by the same, the appellant is before us by way of this appeal raising the aforementioned substantial questions of law. 5.Mr.Hari Radhakrishnan, learned counsel appearin....
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....su had given an affidavit dated 05.02.2018 stating that his earlier statement was not given voluntarily and the IEC was misused by Mr.K.Francis and this affidavit though was produced before the Tribunal, no finding has been rendered on the same. Further, the finding of the Tribunal with regard to the call record details is wholly erroneous and to substantiate this submission, the learned counsel for the appellant very elaborately referred to the call details and submitted that they are beyond the scope of the show cause notice. The learned counsel referred to certain portions of the show cause notice, the Order-in-Original and the Order-in-Appeal and submitted that the findings are clearly beyond the scope of the show cause notice and the call records mentioned in paragraph 11.2 were the invention of the Adjudicating Authority, which is out of the purview of the show cause notice. 9.Further, it is submitted that the Tribunal relied on certain calls alleged to have been made with Mr.Khaja on 04.03.2015 and 09.03.2015 and it is not known from where the Tribunal has produced the call records, as in Annexure-2 of the Order-in-Original, it nowhere mentions that the appellant spoke si....
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....i vs. Unimac India Ltd., [2006 (198) E.L.T. 488 (SC)] for the proposition that the Tribunal, being the final fact finding authority, should give considered finding after delving into the facts on record. For the same proposition, reliance was placed on the decision in Commissioner of Customs, New Delhi vs. Siddhartha Polymers Ltd., [2008 (231) E.L.T. 202 (SC)]; Metroark Ltd. vs. Commissioner of Central Excise, Calcutta [2004 (164) E.L.T. 225 (SC)]; the decisions of the Division Bench of this Court in Nandhi Spinning Mills (P) Ltd. vs. Commissioner of C.Ex., Salem [2018 (8) G.S.T.L. 103 (Mad)]; Alkraft Thermotechnologies (P.) Ltd. vs. Commr. of CGST & C. Ex., Chennai [2019 (30) GSTL 433 (Mad)]; Commr. of C. Ex., & S.T., Chennai vs. Chennai Petroleum Cropn. Ltd., [2019 (369) E.L.T. 267 (Mad.)]; the decision of the Bombay High Court in Mahindra Cie Automotive Ltd. vs. Commissioner of Central Tax, CGST [2019 (367) E.L.T. 142 (Bom)]; the decision of this Court Commissioner of C. Ex., Puducherry vs. CESTAT, Chennai [2018 (363) E.L.T. 110 (Mad)]. To support the proposition, that show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest, reliance ....
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....which was noted by the Tribunal. 15.With regard to the plea that opportunity for cross examination was not granted, it is submitted that the appellant appeared for a personal hearing before the Adjudicating Authority on 28.09.2016 for the second time and did not seek for cross examination of the witnesses and even in his subsequent letter dated 07.04.2017, he only requested for passing orders at the earliest and did not seek cross examination. 16.With regard to the allegation that Mahazar witnesses were not present throughout the Mahazar proceedings, it is submitted that this aspect has been elaborately discussed by the Adjudicating Authority and it has been pointed out that the Mahazar was signed not only by two witnesses, but by ten other persons in whose presence, the same was drawn to vouch for its truthfulness. Further, it is not in dispute that 6kgs of gold was concealed in the consignment of biscuits in 4 cartons, the two panchanama witnesses were continuously present at the spot of seizer for several hours without responding to call of nature. In any event, discovery of gold from the consignment has never been disputed by the appellant, nor any other person. 17.Fur....
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.... himself has paid all the expenses. He had further stated that the appellant also informed him (Mr.V.S.Mathi Arasu) that the DRI has recovered the gold from the consignment of biscuits imported from Singapore in the name of M/s.Solai Exports and Importers. Further, it is submitted that the call record details of mobile no.8098988000 used by the appellant corroborates that the appellant is the master mind behind the smuggling of gold by concealing in the consignments of M/s.Solai Exports and Importers. 18.It is further submitted that the Tribunal has in depth considered the entire mater, apart from the documents, which were placed on record as also the decisions relied on during the course of argument and has dismissed the appeal filed by the appellant and in this regard, referred to paragraphs 8 and 9 of the order. Further, it is submitted that though the Judicial Magistrate has recorded the statements of A1 to A4 that their statements were obtained by threat and coercion, there was no specific denial of their involvement in the activity and nothing was stated before the Judicial Magistrate. 19.Further, it is submitted that the Adjudicating Authority explained very succinctly....
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....ving into the evidences on record. To support such contention, the learned counsel placed reliance on the decisions in Unimac India Ltd. (supra), Siddhartha Polymers Ltd. (supra), Metroark Ltd. (supra), Nandhi Spinning Mills (P) Ltd. (supra), Alkraft Thermotechnologies (P) Ltd. (supra), Chennai Petroleum Corpn. Ltd. (supra), and Mahindra Cie Automotive Ltd. (supra). 24.In our considered view, there can be no quarrel over this settled position of law. If an order passed by an appellate Tribunal is a perfunctory order, if the Tribunal fails to consider the evidence being the final fact finding authority, if it has not discussed or analysed the moot point before it, then such order would call for interference. 25.To apply the legal principles laid down in the aforementioned decisions, we need to examine the order passed by the Tribunal, as to whether the order is a perfunctory order, devoid of reasons, outcome of non-application of mind. Bearing this legal principle in mind, we have carefully gone through the order passed by the first appellate authority. The Commissioner (Appeals) from paragraphs 1 to 15, has set out the factual position as was placed before it by either side. ....
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....Adjudicating Authority has discussed this aspect and has pointed out that the appellant, at no point of time, sought for an opportunity of cross examination even during the personal hearing on 28.09.2016, which was the second date of personal hearing. Further, the Commissioner (Appeals) notes that in the letter dated 07.04.2017, written by the appellant to the Department, there was no request for cross examination and the only request was to pass orders at the earliest. Further, the Commissioner (Appeals) has held that the aspect with regard to the cross examination of Mahazar witness has been elaborately dealt with by the Adjudicating Authority from pages 73 to 76 of the order, wherein it has been noted that the Mahazar was not signed by two persons alone, but by ten persons in whose presence, the same was drawn to vouch for its truthfulness. 29.Further, the Commissioner (Appeals) notes that it is not in dispute that 6kgs of gold was concealed in the consignment of biscuits in four cartons. Further, the Tribunal notes that the facts recorded in the panchanama were corroborated by the statement of persons recorded under Section 108 of the Act, who were present during drawal of t....
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....hich were given under Section 108 of the Act. It may be true that the learned Judicial Magistrate has recorded that the statements were obtained under coercion, yet it would have been well open to the other witnesses to subsequently to give a retracted statement at the time of personal hearing. However, this was not done. Therefore, we find no error in the order of the Tribunal proceeding to hold that the statements remained unassailed. 32.Next, the Tribunal proceed to take a closure look on the call records and holds that they speak otherwise and require lot of explanation by the appellant. Further, the Tribunal also notes the finding recorded by the Adjudicating Authority with regard to the modus operandi, the statements of Mr.K.Francis and Mr.P.Karunanithi and that they are the employees of the Security Agency owned by the appellant, which fact has not been denied by the appellant. Further, the Tribunal has also taken a look on the call records between Mr.Khaja and Mr.V.S.Mathi Arasu and holds that from the beginning of March, 2015 all the three persons (including the appellant) were in touch. 33.The learned counsel for the appellant would argue that this was not part of t....