TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 331
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....on 12.06.2019. In the course of detention, the Respondents were made to make a statement in various papers and documents reflecting their voluntary statements. Pertinent herein to be mentioned that such papers and documents have also been used in the instant proceeding by DRI. It was alleged that the Respondents had admitted to have been involved in several smuggling activities including the one seized on 09.06.2019. When, the Respondents were produced before the Ld.CMM they squarely denied and heavily disputed such a statement reflected as voluntary by DRI by retraction petition filed on 12.06.2019. Thereafter, the Respondents were detained under COFEPOSA proceedings. However, the said proceedings were dropped by the Hon'ble Apex Court by Order dated 04.03.2020. In the meantime, a Show Cause Notice dated 29.11.2019 was issued proposing penalty in terms of Section 112(a) and/or (b) of the Customs Act, 1962. The Adjudicating authority imposed a penalty of Rs.15.00 Lakhs on Shri Ashok Kr. Jalan and Shri Amit Jalan to the tune of Rs.7.5 Lakhs under Section 112(a) & (b) of the Customs Act, 1962. The said order was challenged by both the Respondents before the Ld.Commissioner(Appeals) w....
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....ention they relied on the following decisions :- (a) Sudarsan Jana Vs. Commissioner of Customs (P), Kolkata [2017 (357) ELT 656 (Tri.-Kolkata)] (b) Vinod Solanki Vs. UOI [2009 (233) ELT 157 (SC)] (c) A.L. Jalaludeen Vs. Dy. Dir. Of Enforcement Directorate, Chennai [2010 (261) ELT 84 (Mad.)] (d) UOI Vs. Kisan Ratan Singh [2020 (372) ELT 714 (Bom.)] (e) Sachin Kumar Vs. Commissioner of Customs, Mangalore [2020 (374) ELT 775 (Tri.-Bang.)] (e) Rajendra Prasad Vs. Commissioner of Customs, Patna [2001 (136) ELT 925 (Tri.-Kolkata)] 6. Heard the parties and considered the submissions. 7. On careful consideration of the submissions made by both the sides, I find that in view of instructions issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs F.No.390/Misc./163/2010-JC dated 17.12.2015, the revenue involved in the Appeals are nil as Commissioner(Appeals) has not imposed any penalty on the Respondents, therefore, I hold that Appeals are not maintainable before this Tribunal. 8. On merits also, I find that except the statements recorded by the DRI dated 10.06.2019 and 11.06.2019 which were retracted by the Respondents on the first opportun....
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....pendent evidence, cannot be taken as a Gospel Truth. Therefore, reliance on the statement of the co-accused without corroboration is unacceptable in law. The reliance of Revenue on the judgment of the Hon'ble Supreme Court in Naresh J. Sukhawani is of no avail inasmuch as the statement of the co-accused in that case inculpates himself as well as the petitioner. In the instant case, the co-accused shifted the entire guilt on the appellants. In view thereof, the personal penalties imposed on the appellants are not warranted. Therefore, I have no hesitation in holding that the personal penalties are required to be set aside. Accordingly, I do so." 10. Further, in the case of Sachin Kumar (supra), the Tribunal held as under:- "6. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant Sachin Kumar was a transport agent who arranged the truck for the exporter and appellant No. (2) Venugopal acted as a CHA for clearance of the goods at the NMPT, Mangalore and appellant No. (3) Ravichandra arranged the CHA and the container. Further, I find that the goods were stuffed at the KSDL factory, Bangalore in the presence of Mr. H....
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....re not applicable in the facts and circumstances of the present case because in the present case, penalties have been imposed on the appellant merely on the basis of suspicion without any evidence on record and the suspicion cannot take the place of proof. In view of my discussion above, I am of the considered view that the impugned order is not sustainable in law and therefore I set aside the same by allowing the appeals of the appellants. Penalties imposed on the appellants are also set aside." 11. Further, in the case of Kisan Ratan Singh (supra), The Hon'ble Bambay High Court held as under :- "7. According to prosecution, the statements of both accused were voluntarily and correctly recorded without use of any force or inducement. The Trial Court after considering the evidence recorded and the facts and circumstances of the case, has held that the statements recorded under Section 108 have not been independently corroborated. The Trial Court has held that without an independent corroboration or without any evidence the statements recorded of accused under Section 108 has no evidentiary value, more so when there has been a retraction. I am in agreement with the conclusion ar....
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.... be relied upon. For this, I find support in State of Maharashtra v. Harshad Vaherbhai Patel & Ors. [2012 (1) Bom.C.R. (Cri) 500] and unreported judgment of this Court in Shri Malki Singh v. Suresh Kumar Himatial Parmar in Criminal Appeal No. 228 of 1999 delivered on 29-11-2019 [2020 (371) E.L.T. 642 (Bom.)]. Paragraph 8 of Malki Singh's judgment reads as under : "8. It is no doubt true that under section 104 of the Customs Act, 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under sections 135 or 135A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement made to the Customs Officer is not hit by Section 25 of the Indian Evidence Act, 1872, the position of law being very well settled that the Customs Officers are not police officers and resultantly, a statement made to the Customs Officer is not hit by Section 25. At the same time, the position of a retracted confession is also well settled :- without any independent ....