TaxTMI 
TaxTMI 
2024 (1) TMI 472
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....mined Bills of Entry No. 3842810 dated 02.11.2017, wherein importation of 1300 cartons of '75 GSM Printing Papers (Un-coated) of size 210 x 297 MMX 75GSM' was declared. After de-stuffing of the container it was revealed that it contained 800 cartons of printing papers having description "Nine Blue Edge Series Multipurpose Photo copy paper A4 size/80GSM 2500 sheets High Bright Paper". The container was also found to contain following items : TABLE : A Sr. No. Description written on cartons/corrugated box No. of Cartons 1 Royal Mirage Perfume, Made in USA 28 2 Label Here Box/Jovan Musk 50 3 Color Silk Revlon, Made in USA 500 4 Axe Brand Universal Oil (BNA 24616), Expiry date 15.08.2021, Made in Singapore 12 5 No description found mentioned on the corrugated boxes. 69 6 White Apple Trading 7 2.1 SCN was issued to Shri Babu Ramji Bera, Shri Tejas N. Mehta, and Shri Rajesh M. Mukhiyajee in the name of M/s. Sandeep (under fraudulently obtained IEC) calling upon them to show cause as to why the goods valued at Rs. 1,35,65,673/- should not be confiscated and penalties under Section 112(a), 112(b)(iv) of the Customs Act, 1....
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....anager export and of M/s. Sanzi Group import and export, Mumbai in his statement dated 05.04.2018 stated that they had not got the FMS duty Credit Script No. 0319063514 dated 15.03.2016 and they had not sold the said duty script to M/s. Sandip. Shri Rajesh Mukhiyajee G-card Holder of Jaguar in his statements dated 05.04.2018 clarified that he had received the FMS script from Tejas N Mehta of M/s. Samrat Shipping Agency personally and that the handwriting in the original FMS duty Credit Script No. 0319063514 dated 15.03.2016 was also of Tejas N. Mehta. He also stated that Shri Tejas N. Mehta used to calculate the duty debit and used to arrange license/scripts for duty debit. He also stated that sometimes Shri Babu Ramji Bera used to arrange license/scripts. On the strength of above evidence, Shri Tejas N. Mehta was linked to the current imports, wherein there was mis-declaration and an attempted to smuggle. Learned Counsel for the appellant pointed out that no cross-examination was permitted to them. He relied on the following case laws: Kallatra Abbas Haji Vs. Government of India-1994 (69) ELT 212 (Ker.) Andman Timber Industries Vs. Commr of C.EX., Kolkata-II-2015....
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....6181 dated 24.11.2016 of M/s. Sandip Enterprise from his own Union Bank Account. He has also stated in his statement that license/script purchased by Rajesh Mukhiyaji and transport payments and arrangements were also made by Rajesh Mukhiaji. The fact regarding payment of duty from his own account was admitted by Shri Rajesh Mukhiaji in his statement dated 26.04.2018. 2.8 As regards Tony Fernandes Director of Jaguar Shipping And Logistic Pvt Ltd, it was alleged in the SCN that he was equally involved in the import/smuggling of the goods in the name of Sandeep Enterprising using fraudulent IEC. He had submitted in his documents of M/s. Sandip Enterprises verified from original business premises M/s. Sandeep Enterprises at Thane, Pune, Ahmedabad. It was also alleged in the SCN that he did not insist name of Shri Babu Ramji Bera in the IEC document. It was also alleged that the CHA accept payment of custom duty from 3rd party and CHA charges were also connected from 3rd party. It was also alleged that the CHA did not maintain records of license/scripts/transfer letters of FMS. 2.9 In the notice, the allegation against Shri Bharat Achare G-Card Holder oo CHA relates to the failure....
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....rat Achare of Jeguar Shipping And Logistics Pvt Ltd, Shri Karan Adhikrao Bamne, Shri Tony N. Fernandis Authorized Secretary/Director of M/s. Jaguar Shipping and Logistics Pvt Ltd. Apart from the above statements services were also conducted in the residence of Shri Babu Ramjee Bera, and Geeta N. Mehta at Flat No. 401, Parle Landmark Co-operative Hdg., Society, Junction of Bapubhai Vashi Road and Ansari Road, Next to Laxmi Narayan Temple, Vile Parle (West) Mumbai- 400056, and also at his Flat. 5.1 It is seen that prima facie no significant evidence has been gathered from the searches made in premises of the appellants. From the above said all evidences, it is apparent that the SCN is largely based on the statements recorded during investigations. 5.2 It is seen that Shri Tejas N. Mehta had specifically sought Cross-examination of the persons whose statement has been relied upon, but the same has been denied giving following reasons: 10.7 It has been held by the Hon'ble Supreme Court in the judgment in Bhana Khalpa Bhai Patel v. Asst. Collector of Customs, Bulsar reported as 1997 (96) E.L.T. 211 (S.C.): "47. An attempt was made to contest the admissibility....
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....g or to give evidence and the person so summoned is bound to attend either in person or by an authorized agent, as such officer may direct, is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things as may be required The power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance with the provisions of the Customs Act. He is invested with the power to enquire into infringements of the Act primanly for the purpose of adjudicating forfeiture and penalty. 10.8 In the present proceeding, the case is based on the seizure of smuggled goods and the statements of the key persons involved in the smuggling activities recorded under Section 108 of the Customs Act, 1962. In these statements recorded under Section 108 of the Customs Act, 1962 there are clear and repeated reference to S/Shri Babu Ramji Bera, Tejas N. Mehta and Rajesh Mahendra Mukhiyaji controlling & financing the activities of M/s Sandip, which are reconfirmed by Shri Tony Fernandes, Director, M/s, Jaguar. I find that ....
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....ecial situations and circumstances. 10.8.2 In the case of Collector of Customs, Madras and Others Vs D. Bhoormull reported as 1983 (13) ELT 1546 (S.C.), the Apex Court held as under: "30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the i....
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....way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court.]" 5.4 Hon'ble High Court of Gujarat in the case of M/s. Aziz Fakirmohamed Sumbhaniya Versus Union Of India-2023 (384) ELT 250 (Guj.) as observed as follows: "34.5 The cross-examination, in a given scenario, as was there before the Apex Court, is held not to be an absolute right and the facts of every matter shall need to be regarded by the Court at the time of considering the request for cross-examination. This Court also is not oblivious of the fact that without proving the version of the witnesses in examination-in....