TaxTMI 
TaxTMI 
2025 (7) TMI 1086
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...., the said container was found to be stuffed with 59 numbers of wooden boxes stacked in the front side and behind that, red coloured wooden logs, believed to be red sanders, were concealed. The red coloured wooden logs weighing 14790 kgs., valued at Rs. 6,65,55,000/-., were seized under Section 110 of the Customs Act, 1962, for further action. 2.1. Statement of the freight forwarder namely, Shri Rajiv Agarwal of M/s. Kunal Ocean Agency was recorded on 03.03.2016, wherein, he inter alia stated that the container No. TCKU 2571904 was booked by Shri Sudhir Jha through e-mail dated 25.02.2016; that he had booked other three containers also in the name of M/s. Srijita Exports as per the direction of Shri Sudhir Jha and he had received the payments from Shri Sudhir Jha through cheques of M/s. US clearing Agency, though the bills were raised in the name of M/s. Srijita Exports. It was also stated that he did not know M/s. Srijita Exports and never received payments from the said exporter. 2.2. Shipping Bill No. 6092170 dated 25.02.2016 was filed by CHA, M/s A. K. Sirkar & Sons. Statement of its partner viz. Shri Somnath Sirkar, the CHA/CB was recorded on 04.03.2016 and 06.04.2016, w....
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....were exported by Shri Sudhir Jha in the name of M/s. Akashganga Enterprises (IEC 0205006183), M/s. Sayantika Enterprise (IEC 0213003163), M/s. Gopals Associates (IEC 0204000246) and M/s. Srijita Exports (IEC 0213005794) 2.7. Shri Sudhir Jha had not appeared on the due date and dishonoured 6 summonses dated 7.03.2016, 14.03.2016, 28.03.2016, 11.04.2016, 26.04.2016 and 11.05.2016 issued for his appearance in the matter. A Look-out Circular was issued on 19.05.2016 vide LOC No. 16/2016 dated 19.05.2016. 2.8. Shri Bidyanand Jha, employee of Shri Sudhir Jha, looking after his work at Kolkata Port, never appeared before DRI in the matter in spite of several summons issued to him. 2.9. Enquiry with the transporters and drivers of trucks revealed that all booking had been done by Sudhir Jha and goods were loaded from a godown at Krishnarampur, Panchabatitala, P.S.- Chanditala, District - Hooghly, PIN -712705. 2.10. Statement of Godown Owner, namely, Shri Paresh Das, recorded on 03.06.2016, revealed that the said godown was given on rent to Shri Prasenjit Sani (not a party to the proceeding) under proper agreement. Statement of Shri Prasenjit Sani recorded on 09.06.2016 revealed....
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....ts of Srijita Exports were given by Shri Sandeep Dikshit by calling him below DRI Office; all export documents in relation to four firms had been given by Shri Sandeep Dikshit and after exports, all those documents were returned to him either below DRI Office or Dalhausi, Kolkata; further, that Shri Sandeep Dikshit used to contact him using the number 8967650859 for this purpose; payments of 16 consignments towards ocean freight and transport was given by Sandeep Dikshit @ Rs. 30,000/- per consignment in cash. 4.2. Further, in his statement dated 21.11.2016, Shri Sudhir Jha inter alia stated that he never visited the godown at Dankuni, never took it on rent of Rs.25,000/- per month and never have any agreement in this regard; that Shri Prasenjit Sani (the occupier/ lease of the godown) is lying that he had taken the said godown on rent and stored red coloured logs; that all drivers are telling false facts regarding his presence at godown while loading and sealing of containers by him in their presence. 4.3. Statement of Shri Nirmal Jha, who allegedly introduced the Appellant to Sudhir Jha, was recorded on 06.07.2016. The said statement was not relied upon by DRI but supplied ....
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....ilable in the DVD. Thereafter, the Supplementary Show Cause Notice, dated 18.05.2017 was issued. 8. The following persons were made Noticees vide the Supplementary Show Cause Notice dated 18.05.2017:- i. Shri Vikash Kumar, Deputy Commissioner, ii. Shri Sandeep Kumar Dikshit, the then Inspector of Customs and now Superintendent of CGST & C. Ex., iii. Shri Kislay, Inspector iv. Shri Jyoti Biswas, v. Shri Sudhir Jha vi. M/s. A. K. Sirkar& Sons, CHA, vii. Shri Somnath Sirkar, Partner of M/s A. K. Sirkar & Sons, CHA viii. M/s. Sea King Agencies, CHA, ix. Shri Bidyanand Jha, employee of Shri Sudhir Jha x. Shri Arvind Rana, employee of Shri Prasenjit Sani. 8.1. While issuing the Supplementary Show Cause Notice, following evidences/statements were considered by DRI, Kolkata: - (i) Further statement of appellant was recorded on 07.10.2016, wherein, he has stated that he was I.O. of the case related to fraudulent export under DEPB/DFIA Scheme through Ghojadanga LCS wherein, one Shri Jyoti Biswas of Jyoti Cinema, Maslandpur, 24 PGS (North) was prime suspect and that he (the appellant herei....
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....em for earlier smuggling of suspected 225 MT Apprx., of Red Sanders Wood, a prohibited item, valued at Rs 100 crores (Approx.) exported in 15 consignments in the name of exporters without their knowledge as stated before; and, iv) penalty under the Section 114AA of the Customs Act, 1962 should not be imposed on each of them, for using fake and forged documents, for earlier smuggling of suspected 225 MT Apprx., of Red Sanders Wood, a prohibited item, valued at Rs 100 crores (Approx.) exported in 15 consignments in the name of exporters without their knowledge as stated before." 9. The above Show Cause Notice was adjudicated by the Ld. Principal Commissioner of Customs (Port), Custom House, 15/1, Strand Road, Kolkata, vide the impugned order dated 07.04.2025, wherein a total penalty of Rs.1,50,00,000/- has been imposed on the appellant under Sections 114(i) and 114AA of the Customs Act, 1962. For better appreciation of the facts, the relevant portion of the impugned order related to the appellant herein, is reproduced below:- "VII In respect of Shri Sandeep Kumar Dikshit (Noticee no. 2 of supplementary SCN dated 18.05.2017) "i. I impose a penalty of Rs 1....
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....the mobile numbers 8967650859 & 8335857530 but the RUDs disclosed that he was not in contact with appellant during the said filing period and the Ld. Adjudicator had held in para 5.6.2 that all export documents including ARE-1s were forged by Sudhir Jha. Considering the allegations in the SCN and the findings of Ld. Adjudicator, it is evident that the allegation on the part of appellant regarding supplying him forged export documents did not survive and Sudhir Jha had tried to divert the direction by contradicting his earlier statements dated 23 & 24.05.2016 recorded by DRI. (ii) Sudhir Jha was accused of offence under Customs Act since 22.06.2016 and his further statements are inadmissible as evidence: Prosecution complaint was filed against Shri Sudhir Jha on 22.06.2016 which was transferred by Ld. Chief Metropolitan Magistrate, Bankshall Court, Calcutta on 05.07.2016 for trial. Thus, the statements of Sudhir Jha recorded after 22.06.2016 are barred by Article 20(3) of the Constitution of India being unworthy of any evidentiary value. Reliance is placed in support of this contention on the following: - • 1983 (13) E.L.T. 1590 (S.C.) [Veera Ibrahim V/s State ....
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....settled position of law that in the absence of actual documents used for act of forgery, the allegation of forging alleged export documents or any act in relation to such forgery cannot sustain. (v) Seized DVD destroyed in custody of DRI, Kolkata: In the said Joint Inspection Report dated 26.09.2023, DRI has disclosed that the original DVD which was allegedly seized at the premises of M/s Spak is broken [Sl. No. 12, Page-737, Vol.-II]. The instant SCN is related to smuggling of huge quantities of contraband under cover of forged documents, and the DVD was basis of fresh investigation and issuance of supplementary SCN. The original DVD has been broken in the custody of DRI is something unheard of. Appellant submitted that he had worked in this esteemed organisation and received appreciation letters from the DG, DRI and ADG, DRI. Importance of the seized evidence and material exhibits can be understood, especially when the matter has been referred to other law enforcing agency. This clearly shows that either there was no DVD with 45 files or content of the DVD was altered and now it has been destroyed to conceal the identity of real perpetrators. (vi) RUD-58, i.e. D....
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....ith declaration / certificate under Section 65B of the Indian Evidence Act, 1872. When a RW drive is copied, a new hash value is created. In that case, it is crucial evidence to know the hash value of original DVD at the time of its seizure, which was not done by DRI on 29.07.2016. e. Forensic copy of seized DVD was prepared by DRI in their Office on 18.01.2017 and relied upon as RUD-58. Another DVD [not the seized DVD] containing 20 audio files was sent to CFSL, Chandigarh for forensic analysis of 20 voice clips only, as reflected from the RTI Reply dated 13.12.2022 received from CFSL Chandigarh [copy enclosed]. The forensic copy of the DVD prepared on 18.01.2017 had hundreds of voice clips. So, again, forgery had been committed in obtaining the forensic report from CFSL Chandigarh. Further, DRI had never asked CFSL Chandigarh Authorities to find out the creation time and matching of seized DVD with Annexure to the Panchanama dated 29.07.2016 in order to ascertain the number of files/folders in its master folder DOC to confirm the veracity/authenticity of the seized DVD. In spite of repeated requests, no such expert opinion was provided. f. Thereafter, the appell....
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....ted the allegations levelled in Supplementary SCN that Jyoti Biswas had forged the export documents and as held in paragraph 5.8.2, all export documents including ARE-1s were forged by Sudhir Jha. Thus, any allegations arising out of retracted and motivated statements of Jyoti Biswas not corroborating with documentary evidences and self-contradictory statements of his associates qua appellant herein are unsustainable and, thus, bad in law. (viii) Compliance of Section 138C of the Customs Act, 1962: In the instant case, no certificate under Section 138C of the Customs Act, 1962 read with Section 65B of the Indian Evidence Act, 1872 has been procured by DRI while seizing the DVD or documents derived from such DVD. The export documents actually utilised in the export proceeding and passing through customs authorities of Kolkata Port is not in possession of DRI. The DVD is inadmissible evidence, as declared by the Ld. Adjudicator, thus, the documents printed from such inadmissible DVD are also inadmissible. In this connection, the appellant relies upon the following judgments- • 2023 (385) E.L.T. 338 (S.C) [Jeen Bhawani International V/s Commissioner of Customs, N....
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....aph 5.15.5(i), (ii), (iv) & (v) of the impugned order passed by the Ld. Adjudicating Authority with respect to Mobile No. 8967650859, which is allegedly "said to be used by" the appellant herein, is not sustainable as the same was found to be registered in name of two different persons. Investigation with Bikash Basu of Gaighata, North 24-Parganas does not implicate the present appellant. No investigation with Laizu Bibi is available on-record. The period of dispute is from 07.04.2014 to 25.02.2016 as per DRI, whereas, CDR of said Mobile Number has been relied upon for the period from 02.02.2016 to 22.12.2016 (i.e. mostly beyond the period of dispute) allegedly in use of the appellant and having no CDR with Sudhir Jha during said dispute period of filing of shipping bills. No corroborative evidence in support of such allegation could be brought on-record. (VII) On the basis of the tower location of Mobile No. 8967650859 showed its use at or around Chandannagar, Hooghly, West Bengal where the appellant resides, it is presumed that such mobile number was in use of the appellant. It is submitted that such presumption is also contrary to the vague statement of co-accused Sudhi....
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....appellant with respect to any such forged or fake document also cannot arise since the existence of any such alleged forged or fake documents for export allegedly printed from the said DVD, has been rejected by the Ld. Adjudicating Authority. (X) It is Pertinent to mention that as per statement of CHA/CB the documents meant for export were received by them through e-mail dated 25.02.2016 from Sudhir Jha with respect to the consignment seized by DRI in the present case, whereas, statement of co-accused Sudhir Jha allegedly stating that export documents were physically received by him from the present appellant after calling him using the mobile number 8967650859, stands completely at contradiction, which the Investigating Authority never tried to verify but on the basis of such purported contradictory statement of said co-accused Shri Sudhir Jha has proceeded against the present appellant upon complete bias and mala fide. (XI) The appellant, being Intelligence Officer at DRI, Kolkata, during the period from 10.01.2012 to 29.02.2016 conducted series of investigation against several persons, including co-accused Jyoti Biswas, involving fraudulent exports. Paragraph 9....
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.... allegations levelled in SCN dated 26.08.2016 in this regard in paragraph 5.8.2 of the Order-in-Original that Sudhir Jha had forged all export documents including ARE-1s. (XIII) It is submitted that penalties imposed at para (VII) (iii) & (iv) of the impugned Order-in-Original is not maintainable in law upon the finding of 'suspected' 'earlier smuggling' inasmuch as goods exported under the said 'earlier' consignments are neither available physically nor covered under any bond and there is no evidence on-record suggesting any connection of the present appellant with the said alleged 'earlier smuggling'. As stated supra statements of co-accused/witness, in absence of opportunity of cross-examination and compliance to Section 138B ibid, cannot be sole basis of imposition of any penalty upon the present appellant on those 'suspected' 'earlier smuggling'. Further, surprisingly, no officer of Customs who admittedly issued Let Export Order/s in said 'suspected' earlier exports, were subjected to investigation and/or made party in the proceeding though RMS Instruction with respect to such consignments reflects instruction for physical examination of consignment/s. In absence of a....
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....iry was carried out of the suspected seized wood found from Container NO. MAGU 2539151 on 29th December, 2015. It has been intimated vide letter dated 30th March, 2017 from Consulate General Office Hong Kong that the wood which was seized on 29th December, 2015, from container No. MAGU 2539151, is Pterocarpus Santalinus (Appendix II species ) (Red Sanders) as per Agriculture, Fisheries and Conservation Department (AFCD) of Hong Kong. (ii) Enquiries With Freight Forwarder, Container Agent And Coin: Shri Ajay Kumar Shrivastav, of M/s Speedways Logistics Pvt Ltd (Freight Forwarder) was summoned under section 108 of Customs Act, 1962 on 23.11.2016 when he inter-alia stated that:- a) He worked with Shri Sudhir Jha from December, 2014 and he has given orders for 7 consignments. b) He was shown the mail correspondences dated 30.12.2015 received from Unni Krishnan Nair via mail '[email protected]' wherein it was informed that in container No. MAGU 2539151, wood was detained by Hong Kong Customs. Shri Unni Krishnan Nair is the Assistant Manager of Marine Container Services (1) Pvt Ltd (MCS) which is agent of Yang Ming Line (YML). They recei....
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....3/A Rauf Al Khair Building, Industrial Area 13, Sharjah UAE. An overseas enquiry was carried out in Dubai for verification and antecedent check of the consignee/importer. A report dated 28.2.2017 was received from Indian Consulate at Dubai stating that the said M/s Royal Touch General Trading LLC is not registered with Sharjah Chamber of Commerce or Department of Economic Development of Sharjah. It further stated that the given P.O-Box-82526, Sharjah is not of M/s Royal Touch General Trading LLC, but of another company operating in Sharjah in the field of Trading of Kitchens & Restaurant Equipment. In other words the consignee has also been found to be dubious/fake and non-existing. (vi) Statement Of Shri Sudhir Jha Dated 26.10.2016: Shri Sudhir Jha was once again summoned under Section 108 of Customs Act, 1962 on 26.10.2016 when he inter-alia stated that:- a) He reiterates what he said in his statements given on 23.5.2016, 24.5.2016 and 16.6.2016. b) He knew Shri Sandeep Kumar Dikshit, who was posted at DRI Kolkata office from April, 2014 and he met him many times at the ground flloor below DRI office at Kolkata and also at Dalhousie Kolkata. However he ....
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....ection 108 of Customs Act, 1962 of Shri Arvind Rana(employee of Shri Sudhir Jha) dated 09.06.2016, 10.06.2016 and 13.06.2016 wherein he (Arvind Rana) stated that in the godown situated at Krishnarampur, Panchyabatiala, Chanditala of Shri Prosenjit Sani, he carried out loading and unloading of red coloured logs as per his (Sudhir Jha) advice from December 2015 with the help of 10-12 labourers and he (Sudhir Jha) himself sealed the containers with both Central Excise seal and bottle seal four times and also he (Arvind Rana) escorted Shri Ashok Rai driver of the container vehicle to the godown twice. Shri Sudhir Jha claimed that all statements of Arvind Rana were false as he had not seen any godown. c) Neither did he make any payment to Shri Arvind Rana nor he (Arvind Rana) worked for him. d) He was shown the seizure list, Panchnama dated 04.03.2016 where 14.970 MT of Red Sanders was seized which was loaded at Chanditala Krishnapur Dankuni godown but he was not aware where these Red Sanders was loaded, he only knew that Sanitary ware and Commode basin was loaded at Chanditala Dankuni which was declared in ARE-1, Invoice Packing List. e) Shri Sandeep Kumar Di....
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....ppears to between Shri Jyoti Biswas and Shri Vikash Kumar, Deputy Commissioner of Customs. Shri Sandeep Kumar Dikshit, Inspector of Customs and Shri Kislay, Inspector of Customs. (ix) It has been revealed that Shri Jyoti Biswas was a business associate of Shri Ajay Kr Mahapatra and documents / things related to various companies controlled by Shri Jyoti Biswas were also kept in the office premises of M/s Spak Enterprise Pvt Ltd., at 1 Cock Burn Lane, Room No. 403, 4h Floor, Kolkata 700016. Shri Jyoti Biswas used to come to the said office frequently and engaged his (Shri Ajay Kumar Mahapatra) employees Shri Manish Karna and Shri Dibakar Dey for his own work also. Shri Ajay Kumar Mahapatra is one of the Directors of M/s Spak Enterprise Pvt Ltd. It appears that Shri Jyoti Biswas forged the ARE-1s and other export related documents as he categorically stated that he received forged ARE-1 and other export related documents in soft copies in DVD which he has printed and handed over the documents to either Shri Vikash Kumar, Shri Sandeep Kumar Dikshit or Shri Kislay. (x) Shri Sudhir Jha stated that he got the ARE-1 and other export related documents for the consignment ....
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....r name. Shri Jyoti Biswas also says that he did not make any new documents and asked whether the job belongs to him (Sandeep Kumar Dikshit) or SAAB (Shri Vikash Kumar) to which he (Sandeep Kumar Dikshit) replied that it belongs to both. Jyoti Biswas also says that he will introduce someone who has full knowledge. Shri Sandeep Kumar Dikshit says that he will meet with him and discuss. (xiv) In audio file 'Dkst 0603_081332, Shri Sandeep Kumar Dikshit appears to be enquiring with Shri Jyoti Biswas whether he brought any new documents some 6-7 days before in respect of Sayantika Enterprise on 25th or 26th August to which Shri Jyoti Biswas replied that he did not do so. Shri Sandeep Kumar Dikshit says that he will meet Jyoti Biswas on Saturday. (xv) The detailed path of the voice clips (audio files) mentioned above/below found stored in the said seized DVD are the given in the table below:- Folder/File name Conversation recorded and stored in soft form between Path Dkst 0101 014757 Sandeep Kumar Dikshit and Jyoti Biswas D:\Doc\Phone Call\Call Record Dkst 0603 081332 Sandeep Kumar Dikshit and Jyoti Biswas D:\Doc\Phone Call\New Folder Dk....
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....650859 and he came to the spot for handing over sealed envelopes. He did not know the contents of the envelopes as those were sealed. f) He met Shri Sandeep Kumar Dikshit nearly four to five times from July 2015 to March2016 exchanged envelopes. He delivered the envelopes the same day to Shri Jyoti Biswas and the very next day Shri Jyoti Biswas used to give it back to Shri Sandeep Kumar Dikshit. g) He identified the photographs of Shri Jyoti Biswas and Shri Sandeep Kumar Dikshit shown to him by DRI. (xix) Statement Of Shri Jyoti Biswas, the Owner of DVD Seized on 29.07.2016 from Premises Of M/s. Spak Enterprise Pvt. Ltd.: The statements of Shri Jyoti Biswas, Maslandpur were recorded under section 108 of Customs Act, 1962 on 21.09.2016, 22.09.2106, 03.10.2016, 27.10.2016 and 02.11.2016 when he inter-alia stated that:- a) He was shown the printout of documents in relation to M/s Srijita Export, M/s Ákash Ganga Enterprise, Ms Gopal Assoclates and M/s Sayantika Enterprise which was taken from the DVD seized from the premises of M/s Spak Enterprises Pvt Ltd, 1 Cockburn Lane, Kolkata 700016. b) He has seen those documents. Shri Vikash K....
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....Invoices, Packing lists etc., shown to him by DRI on 21.09.2016, the print outs of which were taken from the copy of seized DVD, were fake and bogus and fraudulent exports took place under cover of those ARE-1e j) He identified the photograph of Shri Vikash Kumar, Deputy Commissioner of Customs and Shri Sandeep Kumar Dikshit shown to him by DRI. k) He did not know any persons namely Shri Raju Biswas of M/s Srijita Export, Shri Sujit Golder of M/s Sayantika Enterprise, Shri Palash Ghosh of M/s Gopal Associates and Shri Manoj Podder of M/s Akash Ganga Enterprises and he was not associated with any firm named M/s U.S Clearing Agency l) He did not know Shri Sudhir Jha, Shri Somnath Sircar, Shri Suman Hazra and Shri Bhagwat Sharma. m) The DVD contains recording of some voice clips which were initially recorded in one Chinese mobile he used earlier and later stored in DVD by him. n) In the said DVD the file name Dkst 0101-013108 contains the voice clips of Sandeep Kumar Dikshit, Inspector of Customs, and all files starting with "Dksť" contain voice clips of Sandeep Kumar Dikshit. o) The file name KLX 0101_144813 contains the voic....
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....forged export related documents with the help of Shri Jyoti Biswas who is known as a master operator having multiple such cases booked against him by DRI and handed them over to Shri Sudhir Jha who ultimately executed the export clearances in respect of the four exporters. (xxi) It appears that Shri Jyoti Biswas with his long previous record of forgeries/manipulations forged seals and stamps as well as forged signatures of officers and printed the fake export documents, used forged exporters signatures and handed them over to either Shri Sandeep Kumar Dikshit, Shri Vikash Kumar or Shri Kislay which was ultimately handed over to Shri Sudhir Jha by Shri Sandeep Kumar Dikshit for fraudulent ¸against the appellant. (xxii) It appears that Shri Jyoti Biswas with his long previous record of forgeries/manipulations forged seals and stamps as well as forged signatures of officers and printed the fake export documents, used forged exporters signatures and handed them over to either Shri Sandeep Kumar Dikshit, Shri Vikash Kumar or Shri Kislay which was ultimately handed over to Shri Sudhir Jha by Shri Sandeep Kumar Dikshit for fraudulent attempted export of 14.79 MTS i....
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....role in the alleged offence. 13. Heard both sides, perused the appeal records and all the documentary evidence placed before us. 14. We observe that the DRI, Kolkata Zonal Unit had intercepted the Container bearing No. TCKU 2571904, placed for export of goods mentioned in the Shipping Bill No. 6092170 dated 25.02.2016. On examination of the said container, it was found to contain 14,790 kgs. of Red Sanders logs, which is a prohibited item for export under Chapter 44, Sl. No. 188 of the Export Policy 2015-20. Accordingly, the Red Sanders, valued at Rs.6,65,55,000/-, were seized under the Customs Act, 1962. 15. On completion of the investigation, initially, a Show Cause Notice dated 26.08.2016 was issued, inter alia proposing confiscation of the impugned goods. In the said Show Cause Notice dated 26.08.2016, there was no allegation against the appellant herein, namely, Shri Sandeep Kumar Dikshit. 15.1. Subsequently, by way of the Supplementary Show Cause Notice dated 18.05.2017, the appellant has been implicated in the present proceedings. 16. We find that the Supplementary Show Cause Notice dated 18.05.2017 has been issued to the appellant primarily on the basis of th....
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....n the DVD can be considered as admissible evidence? III. Whether the statements recorded in this case without complying with the provisions contained in Section 138B of the Customs Act, 1962, which is in pari materia with Section 9D of the Central Excise Act, 1944, can be relied upon against the appellant to implicate the appellant in this case? IV. Whether statements recorded from co-accused can be relied upon to implicate the appellant in this case? V. Whether the statement recorded from Shri Sudhir Jha can be relied upon to implicate the appellant in this case? VI. Whether the retracted statement of Shri Jyoti Biswas can be relied upon to implicate the appellant in this case? VII. Whether the CDR analysis can be treated as admissible evidence for penalizing the appellant in this case? VIII. Whether the allegation of receipt of pecuniary benefits by the appellant is substantiated with evidence? 19. We now proceed to discuss these issues in seriatim. Issue I: Whether the contents of the DVD seized from the premises of M/s. Spak Enterprise Pvt. Ltd. can be treated as admissible evidence to implicate the appellant in the al....
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....rawn to the Statements of Shri Ajay Kumar Mahapatra, the Director of M/s. Spak Enterprise Pvt. Ltd., recorded on 29.07.2016 and 02.08.2016, wherein he interalia stated that the seized DVD belongs to one Jyoti Biswas of Maslandpur, who used to take printouts using his office infrastructure and services of his staff, namely, Dibakar Dey and Manish Kumar Karna; the Statements of Manish Kumar Karna, recorded on 03.08.2016 and 06.01.2017, wherein he inter alia stated that he knew that the DVD belongs to Jyoti Biswas but he never opened it and he never took printouts from the said DVD. From the statements of Shri. Jyoti Biswas we find that he recorded the conversations with the appellant, Sh. Vikas Kumar and Sh. Kislay in his mobile and later he transferred all those voice clippings and the documents given by Sh. Sudhir Jha in the said DVD. Thus, we observe that Jyoti Biswas was the Person who created the original DVD. But, he has retracted his statement. Further, the appellant submitted that during his tenure in DRI he has registered many cases against Sh. Jyoti Biswas. Hence, he has a grudge against him. Thus, the submission of the appellant is that the statements of Sh. Jyoti Biswas a....
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....t the DVD cannot be treated as an original device as the same is only a storage device. c. For that it is an admitted fact that no requisite certificate was provided by the Investigating Authorities in regards to the said DVD as per Section 138C of the Customs Act, 1962 read with Section 65B of the Evidence Act, 1872. d. For that no reasoning has been provided for not seizing the computer found at the premises of M/s Spak Enterprises, even though the DVD was allegedly recovered from the same premises. e. They have cited the judgement of Hon'ble Supreme Court in Arjun Panditrao Khotkar v/s Kailash Kushanrao Gorantyal wherein Hon'ble Supreme Court has made it mandatory that a certificate under Section 65B of the Indian Evidence Act is required when reliance is being placed upon an electronic record. f. For that DRI has acknowledged in their letter to CBI that they did not have original DVD as it has been damaged. 5.6.2 I find that submissions of the noticees (Shri Sandeep Dikshit and Shri Kislay) were forwarded to the DRI requesting to offer comments on claim of the noticees that few RUDs are not available with DRI. However, DRI di....
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.... case. We do not find any reason to disagree with this finding of the Ld. adjudicating authority. 20.5. Further, we also find force in the submission made by the appellant in this regard that data cannot be transferred directly from one DVD to another DVD. It requires burning tools in the form of external software to burn data into the DVD. It is observed that the seized DVD in this case was a 'RW' drive i.e. re-writable and thus when seized, the same should be attributed with hash value and seizure should be done with declaration / certificate under Section 65B of the Indian Evidence Act, 1872. When a RW drive is copied, a new hash value is created. In that case, it is crucial evidence to know the hash value of original DVD at the time of its seizure, which was not done by DRI on 29.07.2016. We observe that the Forensic copy of seized DVD was prepared by DRI in their Office on 18.01.2017 and relied upon as RUD-58. Another DVD [not the seized DVD] containing 20 audio files was sent to CFSL, Chandigarh for forensic analysis of 20 voice clips only, as reflected from the RTI Reply dated 13.12.2022 received from CFSL, Chandigarh. 20.6. The appellant has claimed that the forensic ....
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....n 29.07.2016, which is much before the issuance of the Show Cause Notice dated 26.08.2016. However, it is pertinent to note that the evidence available in the said DVD was not incorporated in the Notice dated 26.08.2016. Subsequently, searches were conducted and statements were recorded from various persons, after recovery of the DVD in question, which is said to contain 45 files in its master folder (DOC). A forensic copy of the said DVD has been prepared by the DRI on 18.01.2017, under Panchanama dated 18.01.2017. As already observed above, it is on record that the original DVD is not available. There is no evidence brought on record to show as to how the said DVD was destroyed or tampered with. Since the original DVD seized from the premises of M/s. Spak Enterprise Pvt. Ltd. is unavailable, which is the main source of information based on which the Supplementary Show Cause Notice has been issued, we are of the opinion that without verifying the original DVD, the information available in the re-constructed DVD cannot be relied upon to implicate the appellant in the alleged offence. 20.8. In view of the discussions above and on the basis of the findings recorded by the Ld. adju....
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....reunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely :- (a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and ....
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....ent; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. - For the purposes of this section, - (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 21.3. From the Section 138 C reproduced above, we observe that computer print outs can be relied upon as evidence in any proceedings only when the Certificate as mentioned in subsection (4) of Section....
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....in presence of one person and, thereafter, it was opened in front of other persons. It is noted that the certificate was not prepared during the seizure of the electronic devices, as required under the law. 9. The investigation is normally started after collecting the intelligence/information from various sources. The investigating officers are procuring the evidences in the nature of documents, statements, etc., to establish the truth. During the evolution of technology, the electronic devices were used as evidence. In this context, the law is framed to follow the procedure, while using the electronic devices as evidence for authenticity of the documents, which would be examined by the adjudicating authority during adjudication proceeding. In the instant case, it is found that the entire case proceeded on the basis of the electronic documents as evidence. But the investigating officers had not taken pain to comply with the provisions of the law to establish the truthfulness of the documents and merely proceeded on the basis of the statements. Hence, the evidence of electronic devices, as relied upon by the adjudicating authority cannot be accepted. 10. The Hon....
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.... Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 17. Only if the electronic record, is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under section 65B of the Evidence Act are not complied with, as the law now stands in India. ......................... ......................... "22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under section 63 read with Section 65 of the Evidence Act shall yield to the same. Generaliaspecialibus non derogant, special law will always prevail over the general law. It appears, the Court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic recor....
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.... the requirement of Section 138C(2) has not been satisfied. On this ground, the impugned order suffers from uncurable error and hence, is liable to be set aside." 12.2 Further, in the case of Tele Brands (India) Pvt. Ltd. (supra), the Tribunal by relying upon various authoritative judgments has also held that the computer printouts allegedly recovered from the computer of the assessee cannot be relied upon as admissible evidence, in absence of compliance of the conditions laid down in Section 138C ibid. In the instant case, it is not established that the computer in question was in regular use by the appellant in the course of his business. No certificate whatsoever, as required under the provisions of Section 138C (2) was obtained. It is settled proposition of law that if a certain act is to be done by a certain authority, in a particular manner, the same should be done in the manner in which it is ordained. There are no short cuts in investigation. Without fulfilling the statutory requirements, subjecting the computer to forensic analysis is of no help and would not help the cause of Revenue. Therefore, we are of the considered opinion that the emails/documents etc retri....
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.... the sake of ready reference, Section 138B of the Customs Act is extracted below: - "SECTION 138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the 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 cou....
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....orted in 2010 (260) ELT 514 (All.), the Hon'ble High Court has observed as under: "15. The question, however, before us is, does the respondent have a right to call upon the appellants to make available the witnesses for cross-examination even before they being examined or their statements relied upon by the Department in proceedings in adjudication. None of the judgments cited above were on the issue of making available the witnesses for cross-examination in order to reply to a show cause notice. Those judgments as already explained were in the course of adjudicating proceedings. Is, therefore, an assessee entitled to cross examine the witnesses at the stage of filing a reply to the show cause notice? A show cause notice is issued on the basis of uncontested material available before the Assessing Authority, who based thereon, has arrived at a prima facie finding whether a show cause notice ought to be issued or not. The material, thus, which has to be considered is, untested and uncorroborated. A party is called upon to reply to the said show cause notice in order to enable the Revenue to know the stand of the assessee, in the context of the material produce....
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....e available the witnesses whose statements were recorded, for cross-examination before the reply to the show cause notice is filed and before adjudication commences. The exercise of cross-examination commences only after the proceedings for adjudication have commenced. Having said so, in our opinion, the first question is answered accordingly." We take note of the fact that the provisions of Section 9D of the Central Excise Act, 1944 and Section 138B of the Customs Act, 1962, are parimateria. 7.4 In terms of Section 138B(1)(b) of the Customs Act, 1962, the relevant portion is that 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. In this case, no such procedure has been followed that the statement which has been relied upon by the adjudicating authority were not examined In-Chief and when the witness has not been. examined, therefore, the question of making an opinion of the admissibility of the said statement as an evidence, does not arise. Consequently, the ....
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....r of a gazette rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains.- a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the 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 a proceeding before a court, as they apply in relation t a proceeding before a court. 24. The Appellant relied upon the decision of the Hon'ble Punjab and Haryana High Court in the case of G-Tech Industries Vs UOI 2016(339)ELT 209 (P &H), wherein it has ....
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....writ proceedings Hence, to invoke Section 9D(1)(a) ibid, adjudicating authority has to pass reasoned and speaking order, which is amenable to challenge by assessee. [para 12] Evidence - Statement before Central Excise Officer - Reliance without invoking Section 9D(1) of Central Excise Act, 1944 to find that attendance of makers of statements could not be obtained for any of reasons contemplated therein It is violation of mandatory requirement of section which vitiated adjudication order - On facts, directions given that if Revenue intended to rely on statement, they would apply to adjudicating officer to summon him, have his examination-in-chief and give copy thereof to assessee to cross-examine them. (paras 22, 23, 24] Evidence Statement before Central Excise Officer Procedure prescribed in Section 90(1)(b) of Central Excise Act, 1944-Use of 'shall' indicates that it is mandatory to follow it Rationale for this is that statement before Gazetted Central Excise officer has every chance of having been recorded under coercion or compulsion. [paras 14, 15] Evidence Statements Recorded behind back of assessee They cannot be relied upon, in adjudication....
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....d in paragraph 18(III) of this order (supra) is in the negative. Issue IV: Whether statements recorded from co-accused can be relied upon to implicate the appellant in this case. 23.1. We also take note of the argument put forth by the appellant that the statement(s) of co-accused recorded under Section 108 of the Customs Act, or any other statement having confessional in nature cannot be treated as substantive evidence and can be pressed in to service only when the court is inclined to accept other evidence. We are of the view that the statements of Shri Sudhir Jha and retracted statements of Shri Jyoti Biswas, both co-accused, and evidence from another case of duty drawback, cannot be the sole basis of imposition of any penalty under the Customs Act, 1962. It is observed that there has been no corroboration of statements of Shri Sudhir Jha, Shri Jyoti Biswas, Shri Rudra Prasad Mondal or Shri Dibakar Dey through independent evidence such as call detail records or financial transactions, etc., which, on the contrary, have been claimed by the appellant to be contradictory to the call detail records. In such circumstances, we agree with the submission of the appellant that the ....
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....pon the statement recorded from Shri Sudhir Jha to substantiate the allegations. In his statement dated 24.05.2016, Shri. Sudhir Jha has inter alia claimed that he was introduced to appellant through one Shri Nirmal Jha in November 2015. However, in his further statement dated 26.10.2016, he claimed that he met the appellant in April 2014. Further, in his statement dated 26.10.2016, Shri Sudhir Jha has claimed that the appellant had given him the export documents/invoices in question in respect of the subject consignments near the DRI building. In this regard, we find that the appellant had denied knowing Shri Sudhir Jha but stated that Shri Nirmal Jha was known to him as a CHA Agent. Shri Nirmal Jha in his statement dated 06.07.2016 denied introducing the appellant to Shri Sudhir Jha. The appellant thus claims that the statement of Shri Sudhir Jha is contradictory to the statement of Shri Nirmal Jha, an independent and reliable witness. Thus, the submission of the appellant is that the statements of Shri Sudhir Jha, being a co-accused, cannot be relied upon in these proceedings. 24.1. In order to examine the reliability of the statements recorded from Shri. Sudhir Jha, we have ....
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....hir Jha. We also take note of the statement dated 09.09.2016 of Shri Suman Hazra, wherein he inter alia stated that he could not access the said e-mail ID after the first week of March, 2016, when the seizure of the subject container took place, as the password had been changed. 24.3. We also observe that Shri Rajiv Agarwall, one of the Directors of M/s. Kunal Ocean Agency Pvt. Ltd., the freight forwarder who had booked the container bearing no. TCKU 2571904, was recorded on 03.03.2016. In the said statement, he inter alia stated that he had got the order for picking up the container through the e-mail received from Shri Sudhir Jha, for shipment of the export cargo by M/s. Srijita Export and accordingly, he placed the order to M/s. Transworld GLS (India) Pvt. Ltd. Shri Rajiv Agarwal also stated that he has booked the said container and three other containers earlier for M/s. Srijita Export, as per the direction of Shri Sudhir Jha; he himself opened his email-ID and submitted printouts of the documents so received from Shri Sudhir Jha. It also transpires from the said statement that he received payments for booking those containers in cheques from Shri Sudhir Jha of M/s. U.S. Cle....
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.... only in his statement dated Shri. Sudhir Jha implicated the appellant as the person who habded over the documents to him. We find that this claim of Shri. Sudhir Jha is not supported by any other evidence. 24.7. Regarding the ARE-1s filed in respect of the current exports vide Shipping Bill No. 6092170 dated 25.02.2016, it is observed from the impugned order dated 07.04.2025, at paragraph 1.19, that enquiries had been conducted with the Rishra Central Excise Division in respect of the ARE-1 bearing No. 011/15-16 dated 26.2.2016 which were submitted along with the Shipping Bill for export. The DRI requested Rishra Central Excise Division vide IR No. 5785 dated 8.3.2016 to conduct enquiry regarding authenticity of the above ARE-1. It was confirmed by the Central Excise office (Rishra Division, Range I of Kolkata-IV Central Excise Commissionerate) vide their letter under IR No. 603 dated 15.3.2016 that the said ARE-1 (No. 011/15-16 dated 26.2.16) and other relevant documents are fake. It was also confirmed by the above letter that there is no unit in the name and style of M/s B.P Agarwal & Sons holding Central Excise RC No. AABCR2137BXM001 or M/s Srijita Export registered under th....
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....cuments, i.e. ARE-1 011/15-16 dated 26.2.2016 and other documents like Appendix III (for export goods under claim for drawback), Appendix C-1(to be filled by Central Excise Officer) on which he put his signature, were all forged as the signature of Shri Raju Biswas did not match. 24.10. Subsequently, during the course of further investigation, a statement was recorded from Shri Manoj Kumar Singh, transporter, on 30.05.2016, wherein the said transporter stated that he had acted on the instruction received from Shri Sudhir Jha of M/s. U.S Clearing Agency; that Shri Sudhir Jha used to provide him information regarding pickup of containers via e-mail and after that, the containers were picked up; that it was Shri Sudhir Jha who used to instruct him about the location from where the goods would be loaded; it is stated that accordingly he used to instruct his driver. In his statement, Shri Manoj Kumar Singh also informs that each and every time, it was Shri Sudhir Jha who used to instruct him over phone for movement of vehicles with empty containers, and not any other person; that Shri Sudhir Jha had also instructed him to take the vehicle No. WB71A 1644 to Tara Marine Plot at Khiderp....
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....bottle seal and Central Excise Seal on all these four occasions. Shri Arvind Rana stated to have arranged 10/12 labourers as per instructions of Shri Sudhir Jha, for which he paid Rs 500/- each to each labourer, the money for labour was provided also being provided by Shri Sudhir Jha; that he loaded the red coloured wooden logs and wash basin in the container, on or around 25th February, 2016, as per the instruction of Shri Sudhir Jha; that the red coloured wooden logs were loaded in container in presence of Shri Sudhir Jha and him and sealed by Shri Sudhir Jha himself and that he had informed his employer namely, Shri Prosenjit Sani about loading and unloading of red coloured wooden logs in godown but he (Shri Prosenjit Sani) directed him to continue with it. 25. The main allegation against the appellant, as could be seen from paragraph 31 of the said Supplementary SCN is that he had taken the forged and fake ARE-1s and other export related documents from Shri Jyoti Biswas or Shri Vikash Kumar or Shri Kislay and handed over those to Shri Sudhir Jha, who ultimately, with help of those fake documents effectively executed the exports (smuggling) of Red Sanders. In his statement da....
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....has been highlighted as one of the main persons behind the entire smuggling operation by Shri Sudhir Jha only after recovery of the DVD in question. 25.2. Further, in his statement dated 21.11.2016, Sudhir Jha inter alia stated that he never visited the godown at Dankuni, never took it on rent of Rs. 25,000/- per month and never had any agreement in this regard. That Prasenjit Sani (the occupier/ lease of the godown) is lying that he had taken on rent the said godown and stored red coloured logs. That all drivers are telling false facts regarding his presence at godown while loading and sealing of containers by him in their presence. There appears to be no corroboration by way of examination of drivers or the godown owner/keepers in support of the denial made by Sudhir Jha in these statements. 25.3. Considering the fact that he used to receive these export documents from one Shri Bhagwat Sharma and not from the appellant herein as claimed in his initial statements dated 23 & 24.05.2016, it can be inferred that in his subsequent statement dated 26.10.2016, he has implicated the appellant as the person who has handed over all the documents connected with the exports, as an afte....
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....xport period and all of accounts maintained by Shri Sudhir Jha were suppressed by DRI. The bank statements of container agent and counterfoils relied upon by DRI evidently prove that Shri Sudhir Jha had made expenditure @ Rs. 65,000/- per consignment towards freight and transportation charges which contradicts the claim of Shri Sudhir Jha. 25.6. In this regard it may also be pertinent to note that as per statement of CHA/CB, the documents meant for export were received by them through e-mail dated 25.02.2016 from Sudhir Jha with respect to the consignment seized by DRI in the present case, whereas, statement of co-accused Sudhir Jha allegedly stating that export documents were physically received by him from the present appellant after calling him using the mobile number 8967650859, which stands completely at contradiction, which the Investigating Authority never tried to verify. 25.7. Statements of Sri Sudhir Jha are full of inconsistencies which cannot be given credence to for arriving at conclusion to establish the charges against the appellant herein. In his statements, Shri Sudhir Jha himself is contradicting the statements tendered by him earlier. Also, he is the person....
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....hat the allegation against the appellant has been made on the basis of the DVD recovered from M/s. Spak Enterprises Ltd. We find that Shri. Jyoti Biswas was the person who created the DVD. Hence, his statement is relevant to analyze the role of the appellant in the alleged offence. 26.1. It has been contended by the appellant that some of the statements relied upon against the appellant in this case were allegedly recorded under duress and coercion and retracted later. Hence, the appellant submitted that such retracted statements have no evidentiary value in the absence of any corroborative evidence. 26.2. In this regard, we observe that the Ld. adjudicating authority has heavily relied on the statements recorded from Shri Jyoti Biswas, Shri Sudhir Jha, Shri Rudra Prasad Mondal and Shri Dibakar Dey, who are co-accused in this case. We find that the Statement of Shri Jyoti Biswas was recorded on 21.09.2016 and 22.09.2016 before his arrest on 22.09.2016, which he retracted when he was produced before Ld. Chief Metropolitan Magistrate, Bankshall Court, Calcutta on 22.09.2016 in presence of DRI Officers. His further statements were recorded on 03.10.2016, 27.10.2016 & 02.11.2016 ....
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...., the law is well settled that merely because an assessee has, under the stress of investigation, signed a statement admitting tax liability and having also made a few payments as per the statement, it cannot lead to self-assessment or self-ascertainment. In the case of Vinod Solanki [2009 (223) E.L.T. 157 (S.C.)], the Hon'ble Supreme Court has ruled that the initial burden to prove that the confession was voluntary is upon the department and that evidence brought by confession if retracted, must be corroborated by other independent and cogent evidence. Madras High Court in the case of Shri Nandi Dhall Mills India Private Limited 2022 (60) G.S.T.L. 227 (Mad.)] held that merely because an assessee has, under the stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment. Though the judgement was pronounced in respect of GST, it goes to indicate that acceptance by the appellant during the course of recording the statement is not just enough and the same has to be confirmed by adducing independently corroborative evidence. The whole case cannot rest simply on the ba....
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...., we find merit in the submission of the appellant that the statements of Jyoti Biswas relied upon in the instant case are motivated statements given by him with a view to implicate the appellant as a retaliatory action. 26.4. Thus, we hold that the Statement recorded from Shri Jyoti Biswas, which has been retracted before a court of law, cannot be relied in the instant proceedings against the appellant. Accordingly, answer to question (VI) mentioned in paragraph 18 of this order (supra) is in the negative. Issue VII: Whether the CDR analysis can be treated as admissible evidence for penalizing the appellant in this case. 27. The appellant submitted that the Call Records Analysis cannot be considered as reliable evidence for imposition of penalty in this case. In this regard, we observe that the examination of the call records reveals the following: (a) SDR of mobile Numbers 8967650859 shows its registration in name of two different persons during 02.02.2016 to 22.12.2016. Allegations have been levelled that the mobile number 8967650859 was used by appellant till 22.12.2016, showing location at Chandannagar, though said number was registered in the name of two dif....
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....s in question were filed between 07.04.2014 and 25.02.2016. The call details as discussed in paragraph 22.2, however, do not match with these dates. No call is there to show that the exchange of documents took place on this time at this place. As per the statements recorded during investigation, Shri.Sudhir Jha is the person who filed the shipping bills, therefore call record details in respect of Sudhir Jha is relevant in the current proceedings. On perusal of the call records as per CDRs and SDR, it is not proved that appellant did have any conversation during the period of filing the Shipping Bills [07.04.2014 to 25.02.2016] with the key person Shri Sudhir Jha, who admittedly filed the Shipping Bills and held responsible for forging all export documents including all ARE-1s. 27.2. We also find force in the following submissions made by the appellant in respect of CDR analysis with regard to Shri Sudhir Jha: - (i) Sudhir Jha alleged that the mobile numbers 8335857530 and 8967650859 were used by the appellant for exchange of documents with him for filing of Shipping Bills. Shipping Bills were filed during 07.04.2014 to 25.02.2016. (ii) As per CDR, the mobile n....
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.... was held responsible for filing the shipping bills and forging export documents including ARE-1s. 27.4. We also take note of the fact that the allegations are not corroborated by the CDR. Regarding the mobile number 8335857530, the information given in Supplementary SCN dated 18.05.2017 appear to be unreliable. As mentioned in paragraph 22.3 of the Supplementary SCN, there are 45 calls using mobile number 8335857530 at the location Chandannagar during 27.02.2016 to 23.02.2017. However, it has been submitted before us that the SDR & CDR relied upon does have any such call. The only call using this mobile is generated on 27.02.2016 and there is no call to any of the known numbers of Sudhir Jha. Thus, we find force in the contention of the appellant that the allegation in the said Show Cause Notice as to there being frequent calls and corroborative evidence, is contrary to the documents relied upon. 27.5. We find that in his defence, the appellant has urged the following grounds before the ld. adjudicating authority: - (a) SDR of mobile Numbers 8967650859 shows its registration in name of two different persons during 02.02.2016 to 22.12.2016. Allegations levelled [Para....
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....appellant had made calls to the other persons accused in the notice in regard to the alleged offence. Accordingly, the question raised in paragraph 18(VII) of this order is answered in the negative. Issue VIII: Whether the allegation of receipt of pecuniary benefits by the appellant is substantiated with evidence 28. We observe that the allegation of receipt of pecuniary benefits in connection with the offence has been levelled against the appellant mainly on the basis of the Statements of Shri Rudra Prasad Mondal. 28.1. It is seen that the statements of Shri Rudra Prasad Mondal, associate of Shri Jyoti Biswas, were recorded on 27.09.2016 and on 14.03.2017 in a separate case related to fraudulent export under 'duty drawback scheme' through Petrapole LCS. In these statements, Shri Rudra Prasad Mondal has alleged that he supplied Kitchen chimney and water purifier to the appellant. On 19.04.2017, appellant had submitted all purchase documents along with bank statement evidencing the payments for said purchases. In the said case related to duty drawback case, complicity of the appellant was investigated by DRI, Kolkata but, he was not made a noticee in the SCN issued in the s....
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....oceedings. III. The statements relied upon by the ld. adjudicating authority in the impugned order are not admissible evidences in the current proceedings against the appellant, in view of the non-compliance of the provisions as mandated under Section 138B of the Customs Act, 1962, which is in pari materia with Section 9D of the Central Excise Act, 1944. IV. The statements of the co-accused cannot be construed as reliable evidence against the appellant in the facts and circumstances of this case. V. The statement of Shri Sudhir Jha cannot be treated as admissible evidence in the current proceedings against the appellant. VI. The statement recorded from Shri Jyoti Biswas, which has been retracted before a court of law, cannot be relied in the instant proceedings against the appellant for imposition of penalties. VII. The analysis of CDR in this case does not establish that the phone numbers had been used by the appellant or that the appellant had made calls to the other persons accused in the notice in regard to the alleged offence. VIII. The allegation of receipt of financial incentives by the appellant in connection with the al....
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....Section 114AA: "SECTION 114AA - Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." 31.1. From the above cited Section 114 of the Act, we observe that the said section prescribes penalty on any person "who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act". Section 114AA envisages that a person who knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, shall be penalized under the said Section. We observe that in the present case, the evidences available on record do not indicate that the elements required for imposition of penalty under Section 114(i) of the Act are available. Henc....