TaxTMI 
TaxTMI 
2025 (6) TMI 370
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....ed by the Commissioner of Customs (Appeals) dismissing the two appeals filed by the appellant to assail the two orders, each dated March 29, 2019, passed by the Additional Commissioner of Customs imposing penalties upon the appellant under section 114(iii) and section 114AA of the Customs Act, 1962 the Customs Act. 2. M/s Sartaj International Exporter no. 1 had filed two shipping bills dated March 09, 2015 for export of readymade garments claiming benefit of Focus Market Scheme. The shipping bills had declared port of destination and country of origin as Mogadishu in Somalia. The investigation revealed that Exporter no. 1 diverted the goods to Jebel Ali in UAE by fraudulently amending TR-1 and TR-2 copies of the shipping bills with t....
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....terest and imposed penalties under section 114(iii) and section 114AA of the Customs Act. 5. Two appeals were filed by the appellant before the Commissioner (Appeals) to assail the order passed by the Additional Commissioner. The appeals were dismissed by order dated April 04, 2022 and the relevant portion of the order is reproduced below : "2.1.2 The investigation revealed that Exporter-1 had filed shipping bills no.8254819, 8254817 both dated 09.03.2015 for export of Ready-Made Garments to Mogadishu (Somalia) for claiming undue benefits of FMS/SFMS/ MLFPS/MEIS, whereas the goods were diverted to Jebel Ali (UAE) by fraudulently amending the TR1 and TR-2 copies of the Shipping Bills. This was done wilfully by the Exporter-1 with the help....
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....ements of the Appellant are duly corroborated by the statements of the exporter. Neither the Appellant nor the exporters have ever retracted their statements. Therefore, the admitted statements cannot be ignored. 5.4 The plea of the Appellant that the statements were recorded under pressure/ coercion has no legs to stand. The Appellant never submitted any complaint regarding statements being under pressure. It is impossible to believe that the Appellant was under pressure for such a long period of two years to give statement as per whims & facies of the Department. The only conclusion that can be drawn to is that he stated facts in the statements and he can not deny them now. 5.5 There are plethora of judgments on the issue that stateme....
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....sis supplied ) 6. Shri Ashirwad, learned counsel for the appellant assisted by Shri Virat Sharma submitted that penalties have been imposed upon the appellant under section 114(iii) and section 114AA of the Customs Act only on the basis of the statements made by the appellant and the exporters under section 108 of the Customs Act, which statement could not have been relied upon as the procedure contemplated under section 138B of the Customs Act was not followed. 7. Shri Shashi Kant Sharma, learned authorized representative appearing for the department, however, supported the impugned order passed by the Commissioner (Appeals). 8. A perusal of the order passed by the Commissioner (Appeals) shows that the finding that the appellant helped ....
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....t. A bare perusal of sub-section (1) of these two sections makes it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of ....
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....quiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when such persons are examined as witnesses before the adjudicating authority and the adjudicating authority forms an opinion that the statements should be admitted in evidence. It is thereafter that an opportunity has to be provided for cross-examination of such persons. The provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 14D of the Central Excise Act or under section 108 of the Customs Act. The Courts have also explained the ....