TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1086
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....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, wherein, he inter alia stated that he had allowed ....
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....hganga 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 that he had let out a portion of said godown on rent to Shri Sud....
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.... 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 by them vide letter under DRI F. No. DRI/KZU/AS/ENQ-13/2016/Pt./1351 dated 08.03.....
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....ed. 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 herein) was instrumental in issuance of 10 to 12 Show Cause Notices against said Jyoti Biswas. (ii) Further statement of appellant was recorded on 19.04.2017, wherein, he confir....
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....ed 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 10 lakh on Shri Sandeep Kumar Dikshit under Section 114 (i) of the Customs Act, 1962 in respect of the attempted smuggling of the said seized 14,790 Kgs Red Sanders wood, a prohibited item, valued at Rs 6.65 Crores (approx.); ii. I i....
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.... 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 of Maharastra] * 1999 (110) E.L.T. 324 (S.C.) [Romesh Chandra Mehata V/s State of West Bengal] * 2010 (260) E.L.T. 526 (Guj.) [Bhavin Impex Pvt. Ltd. V/s State of Gujarat] (iii) Statements of Sudhir Jha and Dibakar Dey are vague and not corroborated with other RUDs: Sudhir Jha ....
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....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. DVD is forged evidence used as original: The Supplementary SCN dated 18.05.2017 has been issued based on re-investigation which was necessitated by alleged recovery of a DVD by DRI at M/s Spak Enterprises under Panchnama dated 29.07.2016. As per Annexure to Panchanama dated 29.07.2016 which is the screen shot of the DVD taken at 01:11 AM on 29.....
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....ied 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 appellant was forced to utilize the services of M/s Truth Labs, Kolkata in order to ascertain the number of files/folders in its master folder DOC to confirm the veracity/authenticity of the seized DVD. Expert Opinion of Forensic Experts of M/s Truth Labs, Kolkata clearly prove that the DVD relied upon [RUD-58] contains 44 files/folders in master folder DOC having modification time as 02:30....
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....nsustainable 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, Nhava Sheva-III] * 2025 (5) TMI 1626 - CESTAT Kolkata [P.C. Jain, M/S Bhagawati Enterprise, M/S Sovitec International, M/S Cosmic Enterprises, M/S Jain Prints, Dharam Pal Jain and M/S Jain Impex Versus Commissioner of Customs (Port), Kolkata] 11.1. Without prejudice to the above, the following further submissions have also been made by the appellant in support of his contentions: - (I) None of the statements of co-accu....
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...., 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 Sudhir Jha who allegedly stated that he used to collect documents for export from the appellant either in front of DRI Office at Ho-Chi-Minh Sarani, Kolkata or at Dalhousie, Kolkata after contacting in the said mobile number. In other words, if the said vague statements of co-accused Sudhir Jha disclosing no specifics viz. time /date /venue of alleged exchange of specific document is considered to be correct then the tower location of said mobile number should have been at or around Ho-Chi-Minh Sarani, Kolkata or at Dalhousie, Ko....
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....xport 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 9.2.1 of the Supplementary Show Cause Notice dated 18.05.2017 reflects details of 17 such cases, but for the reasons best known to the SCN issuing Authority/Investigating Authority, fact that all such investigations were conducted as I.O. by the present appellant against the co-accused Jyoti Biswas, has been comfortably suppressed in the SCN, though such fact was duly recorded in the statement dated 07.10.2016 of the present appellant. Pertinent to mention that out of such 17 SCNs, on completion of investigation, 10 SCNs were issued during the tenure of....
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....lant 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 any such investigation, it cannot be 'suspected' that there was any 'earlier smuggling' of any Red Sander Wood implicating any connection of the present appellant. The Hon'ble High Court, Calcutta videOrder dated 18.07.2017 in W.P.O. 385 of 2017 [Noor Alam V/s Commr. of Cus. (Airport & Administration)] and vide Order dated 25.07.2017 in W.P.O. 413 of 2017 [Sarfaraz Mahammed v. Commr. of Cus. (Airport & Administration)] has repeatedly held that penalties imposed on assumption of earlier illegal import cannot sustain in law and hence, such penalties were set aside. Rat....
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....ned 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 received the mail as they booked the container for shipment through MCS and the goods, i.e., 'wood' was detained as Hong Kong Customs found the wood to be of suspicious nature. c) Shri Sudhir Jha has placed the order for shipment to Hong Kong where wood was found in container No. MAGU 2539151. This was exported against Shipping Bill No. 4020191. He (Sudhir Jha) has informed that only sanitary ware will be exported. d) As per shipping line MCS, two third of the total cargo was detained. e) They have informed Shri Sudhir Jha about detention of Cargo and wood found in the said container via mail. This was....
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....-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 never went to his house. c) Shri Sandeep Kumar Dikshit gave him export documents, i.e., ARE-15, Invoices, and other export related documents of M/s Srijita Export in respect of 4 consignments at the ground floor below the DRI office at Kolkata. d) All ARE-1s, Invoices Packing lists and other export related documents were given to him by Shri Sandeep Kumar Dikshit at the ground floor below the DRI office and Dalhousie Kolkata and he (Sandeep Kumar Dikshit) took back all the documents after shipment at the same place and he did not have any documents with him now. e) Shri Sandeep Kumar Dikshit used to contact him from the phone number 8967650859 and many other numbers which he could not re....
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....ana) 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 Dikshit whom he identified in photograph on 24.05.2016 at DRI office was confronted on 21.11.2016 at DRI office but he (Sandeep Kumar Dikshit) refused to identify him (Sudhir Jha). Shri Sandeep Kumar Dikshit was not telling the truth. f) He never went to Chanditala Dankuni godown at the time of loading on 27.02.2016. g) When confronted by DRI on 21.11.2016 with mobile phone analysis of 9830836725 and 8697723537 he agreed that he went to Chanditala Dankuni and in a Dhaba where he handed over the ARE-1, Invoice, Packing List to Shri Arvind Rana which was given to him by Shri Sandeep Kumar Dikshit. He met Arvind Rana at Chanditala Dankuni as per direction of Shri Sandeep Kumar Dikshit. (viii) Seizure of DVD containing evidences of smuggling of red sanders in the subject case and other exp....
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....ort 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 which was seized on 4.3.2016 and other 15 consignments which were exported, from Shri Sandeep Kumar Dikshit. It appears from the conversations in voice clips found in the seized DVD that Shri Jyoti Biswas was in constant touch with Shri Vikash Kumar, Shri Sandeep Kumar Dikshit and Shri Kislay. Even the name of the exporters whose IEC were used for fraudulent export of suspected Red Sanders were being discussed amongst other things in the said voice clips. (xi) Contents of seized DVD corroborating alleged officers connivance with Shri Jyoti Biswas: The seized DVD appears to contain some audio recordings of conversation between Shri Jyoti Biswas and departmental officers which was recorded by Shri Jyoti Biswas on his mobile and later stored in a DVD by him. Shri Jyoti Biswas in his statement dated 27.10.2016 stated that in ....
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....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 Dkst 0922 164641 Kislay and Jyoti Biswas D:\Doc\Phone Call 27092015 Dkst 0922 204827 Kislay and Jyoti Biswas D:\Doc\Phone Call\27092015 Dkst 0926 111412 Kislay and Jyoti Biswas D:\Doc\Phone Call\27092015 Dkst 0926 191126. Kislay and Jyoti Biswas D:\Doc\Phone Call\270922015 (xvi) Audio files starting with 'Dkst' appear to be conversation between Shri Sandeep Kumar Dikshit, Inspector of Customs and Shri Jyoti Biswas. (xvii) As stated above the seized DVD also contains ten forged copies of ARE-1s used in cases of suspected smuggling of Red Sanders in the name of exporters - M/s Sayantika Enterprise, M/s Gopals Associate and M/s Akash Ganga Enterprise). According to Shri Jyoti Biswas, these ARE-1s used in the suspected Smuggling of Red Sanders were also given to him by Shri Vikash Kumar. The DVD also has forged IEC of M/s Srijita Exports Srijita Ex....
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...., 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 Kumar used to give him those documents in DVD and he printed the same in coloured papers and gave them back to Shri Vikash Kumar, Shri Kislay and Shri Sandeep Kumar Dikshit. He gave It to Shri Sandeep Kumar Dikshit through shri Divakar, who is an employee of M/s Spak Enterprise Pvt Ltd. The documents were printed by Shri Manish Karna, an employee of M/s Spak Enterprise Pvt Ltd., as per his instruction and in his presence. He was doing it from 2014 onwards. He did not know who affixed the stamp on those printouts or whosigned those documents, i.e., ARE-1s and other export related documents. c) Shri Vikash Kumar, age about 35 years is Deputy Commissioner of Customs, Shri Kislay and Shri Sandeep Kumar Dikshit were Inspectors of Customs and Shri Sandeep Kumar Dikshit was in DRI Kolkata six months back and at present posted at Custom House, Kolkata. d) He met Shri Sandeep Kumar Dikshit nearly 4 to 5 times at his residence at ChandannagarPatrapara, after 29.7.2016, i.e.,....
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....es starting with "Dksť" contain voice clips of Sandeep Kumar Dikshit. o) The file name KLX 0101_144813 contains the voice clips of Kislay, Inspector of Customs and all files starting with "KLX contain voice clips of Kislay. p) The file name X2_0101_004605 contains the voice clips of Shri Vikash Kumar, Deputy Commissioner of customs and all files starting with 'X2' were the voice clips of Shri Vikash Kumar. q) He was not aware that the documents found in the DVD were used for smuggling of Apprx. 225 MT of Red Sanders valued at Rs 100 Crore. He again reiterated that he only took print out from the said DVD-as per instruction-of Shri-Vikash Kumar and-handed it over to Shri Vikash Kumar, Shri Kislay and Shri Sandeep Kumar Dikshit. r) He was again shown the printout of documents, i.e, ARE-1s and other export related documents where he made endorsement as 'this document was given to me as Soft copy In a DVD by Shri Vikash Kumar, DC of Customs', He mentioned the year only i.e., the year when he received the DVD from Shri Vikash Kumar and not the exact date as he could not recollect. After getting the DVD, he took print out immediately and handed it over within....
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....ri Sandeep Kumar Dikshit for fraudulent attempted export of 14.79 MTS in the subject case and suspected export of Red Sanders totalling 225 MTS for earlier period. He appears to have systematically forged the Central Excise seals and affixed forged signatures of Central Excise officers on the ARE-1s and other Central Excise related documents in such manner and was a main member of the smuggling syndicate. (xxiii) Shri Sudhir Jha admitted that he took up the export clearance work for all the 16 consignments involving 16 Shipping Bills which were used in the attempted smuggling of Red Sanders seized and suspected fraudulent exports of total 240 MTS Red Sanders valued at Rs 100 Crore. He also admitted that the goods were being loaded at ChandítalaDankuni and he went to ChanditalaDankuni handed over ARE-1, Packing List and Invoice to Shri Arvind Rana on 27.2.2016. (xxiv) The analysis of Tower Location ID of the Mobile Phone Nos.: 9830836725 and 8697723537 used by shri Sudhir Jha indicate that on 27.2.2016 and 18.1.2016, he was present at/near the vicinity of the godown at ChanditalaDankuni where Red Sanders were stored and loaded. He had spoken from -these numbers on seven o....
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....appellant primarily on the basis of the incriminating material found against the appellant in the DVD recovered and the statements recorded. 17. It is seen from the records that the appellant has made various submissions before the investigation officers wherein he has categorically stated that he is no way connected with the alleged offence of export of Red Sanders. However, the ld. adjudicating has not agreed to the said submissions of the appellant and passed the impugned order interalia imposing penalties, totalling to Rs.1,50,00,000/-, on the appellant, under Sections 114(i) and 114AA of the Customs Act, 1962 for his role in the alleged offence in the present case as well as on the smuggling of Red Sanders on the earlier occasions. 17.1. In the present case, it has been primarily alleged that the appellant, Shri Sandeep Kumar Dikshit, along with Shri Vikash Kumar and Shri Kislay, has handed over the documents related to the export consignments to Shri Sudhir Jha for fraudulent attempted export of 14.79 MTS in the current case and suspected export of Red Sanders totalling to 225 MTS on earlier occasions. The main allegation against the appellant is that he, along with Shri Vi....
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....that in the instant case, the name of the appellant herein has mainly come to the knowledge of the investigating officers after recovery of the DVD from the premises of M/s. Spak Enterprises Pvt. Ltd., 1, Cock Burn Lane, Room No. 403, 4th Floor, Kolkata - 700 016 on 29.07.2016. Thus, the information available in the DVD and the statements recorded in connection with the DVD has become the prime to implicate the appellant in the alleged offence of smuggling of 'Red Sanders'. We observe that the appellant has questioned the validity of the DVD and the documents contained therein. 20.1. The appellant's primary contention in this regard is that the entire allegation against him has been levelled on the basis of unsigned printouts taken from a forged DVD. It is his further submission that in the absence of the original documents used for the act of forgery, the allegation of forging alleged export documents or any act in relation to such forgery cannot sustain. It has also been submitted by the appellant before us that the seized DVD has been destroyed in custody of DRI, Kolkata. In this regard, we have taken note of the appellant's submission that in the Joint Inspection Repor....
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....nce they cannot be relied upon against him. Accordingly, the appellant has questioned the evidentiary value of the DVD and the documents contained therein and the statements recorded in connection with the DVD, to implicate him in the alleged offence and argued that the same cannot be relied upon against him in this proceedings. 20.2. We observe that the instant proceedings are related to smuggling of huge quantities of contraband under cover of forged documents, and the DVD was the basis of fresh investigation and issuance of supplementary SCN dated 18.05.2017. The said DVD is said to contain 45 files/folders in its master folder named "DOC". A forensic copy of the same was prepared by DRI in their office on 18.01.2017 and provided as RUD-58 to the said Supplementary SCN and it has been alleged that the DVD contained the soft copies of ARE-1s which were used in fraudulent export of Red Sanders inter alia with the connivance of the appellant. It has also been alleged that said DVD contained voice clips related to appellant's conversations with Jyoti Biswas, a co-accused in this case. The appellant has pointed out that this DVD is brought on record in the said Supplementary Show Ca....
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....refore I find that I have to verify the claim of the noticees on the basis of evidences submitted by them during the adjudication proceedings. 5.6.3 Therefore I find that I have to verify the claim of the noticees on the basis of evidences submitted by them during the adjudication proceedings. I find that Shri Sandeep Kumar Dikshit submitted a copy of Inspection of Documents' Report dated 26.09.2023 which was carried out in the office of DRI, KZU in presence of Deputy Director of DRI wherein at St no. 12, it has been mentioned that original DVD actually seized on 29.07.2016 was not shown and it has been informed by DRI that original DVD has been damaged. 5.6.4 I further find that as per Panchnama dated 29.07.2016, the officers of DRI entered the campus of M/s Spak Enterprises Pvt Ltd on 29.07.2016 at 3 PM. As per annexure to the said panchnama (a screenshot of computer), the seized DVD had 45 files and the timing of the screenshot is shown as 1.11 AM of 29.07.2016 i.e. before the initiation of search proceedings which I find strange. 5.6.5 I further find that Shri kislay has submitted in his defense reply a computer screenshot of DVD provided to him as RUD 58. As per th....
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....arh. 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 fact, the submission of the appellant is that in spite of repeated requests by him, no such expert opinion was provided. Thereafter, the appellant was forced to utilize the services of M/s Truth Labs, Kolkata in order to ascertain the number of files/folders in its master folder "DOC" to confirm the veracity/authenticity of the seized DVD. We have gone through the Expert Opinion of Forensic Experts of M/s. Truth Labs, Kolkata submitted by the appellant, which proves that the DVD relied upon [RUD-58] contains 44 files/folders in master folder "DOC" having modification time as 02:30:26 hrs, dated 29.07.2016. It shows that files were either deleted or altered or tampered. It also confirms that the hash value of DVD having 45 files/folders will be different to the hash value of DVD having 44 files/folders. Admittedly, the appellant had made repeated requests to DRI to provide the forens....
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.... upon as admissible evidence in this proceedings. Accordingly, the answer to question (I) raised in paragraph 18 of this order (supra) is in the negative. Issue II: In the absence of a certificate as required under Section 138C of the Customs Act, 1962, whether the documents contained in the DVD can be considered as admissible evidence. 21. We have examined the contention raised by the appellant as to non-compliance of the provisions of Section 138C of the Customs Act, 1962 by the Revenue as regards the purported contents of the DVD in question. It is a fact on record that 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 originals of the export documents, which were actually utilized in the export proceedings and for passing through Customs authorities of Kolkata Port are not in the possession of DRI. 21.1. The appellant has contended that computer printouts taken from the DVD recovered during the search as well as extracted from e-mail cannot be relied upon as evidence to impose penalty on him, in the absence of a certificate as....
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.... or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the prod....
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....us Commissioner of Customs, Nhava Sheva-III [(2023) 6 Centax 11 (Tri.-Bom), wherein the Hon'ble High Court has made the following observations: - "12.1 Section 138C ibid deals with the situation, where the computer printouts cannot be considered having evidentiary value in certain circumstances. Various conditions have been prescribed under the statute. Admittedly, in this case, the prescribed conditions have not at all been complied with by the department. More particularly, the required certificate in terms of sub-section (4) of Section 138C ibid has not been furnished by the department. In this context, the Tribunal in the case of S.N. Agrotech (supra) has held that in absence of certificate required under section 138C ibid, the electronic documents in the form of computer printouts cannot be relied upon by Revenue for confirmation of the adjudged demands. The relevant paragraphs in the said order are extracted herein below: "7. Section 138C of the Act, 1962 provides admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence. For the proper appreciation of the case, Section 138C of the Act, 1962 is reproduced below : ....
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....ion 65B. - Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. 15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied : (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditio....
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.... admitted in evidence unless the requirements under section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." 11. Upon perusal of the judgment of the Hon'ble Supreme Court in the case of Anvar P.V. (supra), we note that the Apex Court has categorically laid down the law that unless the requirement of Section 65B of the Evidence Act is satisfied, such evidence cannot be admitted in any proceeding. We note that the Section 138C of the Customs Act is parimateria to Section 65B of the Evidence Act. Consequently, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted as in the present proceedings only subject to the satisfaction of the sub-section (2) of Section 138C. This refers to the certificate from a responsible person in relation to the operation of the relevant laptop/computer. After perusing the record of the case, we note that in respect of the electronic documents in the form of computer print....
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....ing of the details of the CPU, the place of installation in the premise, custodian of the CPU etc. Therefore, we find that as per the ratio laid down in the above referred judgments, the documents retrieved, lost their evidentiary value and cannot be relied upon for upholding the charges of undervaluation of goods and demand of the differential duty." 21.3.1. We find that the above decision has been affirmed by the Hon'ble Supreme Court as reported in (2023) 6 Centax 14 (S.C.). 21.4. In view of the above discussion and by relying on the decision cited supra, we observe that the provisions of Section 138C have not been complied with in this case and accordingly, we hold that the information available in the said DVD cannot be relied upon as evidence against the appellant in the impugned proceedings. Thus, the answer to the question (II) raised in paragraph 18 of this order is in the negative. Issue 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 t....
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.... persons, except Shri Sudhir Jha. In this regard, it is seen that even the cross-examination of Shri Sudhir Jha could not be conducted due to non-supply of documents. It is well settled that statements of witnesses cannot be relied upon for imposition of penalty upon any person unless such witness is produced for cross-examination. Since cross-examination of witnesses has never happened in the present case, as such, the statements thereof cannot be used against the appellant herein for any penal action, as has been held by the Hon'ble High Court, Calcutta in case of Ajay Saraogi v. Union of India [AIR OnLine 2023 Cal 1837]. Thus, we are of the view that principles of natural justice, as enshrined in Section 138B of the Customs Act, 1962, have not been followed in this case. 22.3. In this regard, we also refer to the decision of this Tribunal in the case of P.C. Jain, M/s. Bhagawati Enterprise &ors. v. Commissioner of Customs (Port), Kolkata [2025 (5) TMI 1626 - CESTAT, Kolkata] wherein it has been observed as under: - "7.2 In that circumstances, the issue arises:- (a) whether the statements recorded during the course of investigation can be admissible in the absence of the....
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....cation. It is only a step in the process of adjudication. The show cause notice by itself is not an order of assessment. The order of assessment will be passed only after considering the evidence and the material, which is placed before the quasi judicial authority/tribunal. Therefore, as the show cause notice is based on prima facie material and constitutes a prima facie opinion, that does not result into an order of adjudication. The question, therefore, of an assessee being entitled to cross-examination, even before the adjudication has commenced, in our opinion, surely would not arise. It is only after the adjudication proceedings have commenced pursuant to the show cause notice and if the Revenue seeks to rely upon the statements or documents, then the principles of natural justice would require in the absence of any statutory provision, that the person whose statement was recorded is made available for cross-examination to test the veracity of the statement. 16. We, therefore, have no hesitation in holding, that there is no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and re....
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....8B of the Customs Act, has not been followed. We, therefore find merit in the submission of the appellant that the said statements cannot be relied upon in the instant proceedings against the appellant. 22.5. We find that this view is also supported by the decision of this Tribunal in the case of M/s. Gobinda Das v. Commissioner of Customs (Prev.), Kolkata [2023 (5) TMI 672 - CESTAT, Kolkata], wherein it was held as under: - "22. 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 ....
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....ss and until he can legitimately invoke Section 9D(1)(a) ibid - In all other cases, to rely on for proving truth of contents of statement, he has to first admit statement in evidence in accordance with Section 9D(1)(b) ibid, for which he has to summon person who had made statement, examine him as witness before him in adjudication proceeding, and arrive at opinion that statement should be admitted in interests of justice - Only thereafter, question of offering witness to assessee for cross-examination can arise. -Clearly, if this procedure, which is statutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. [paras 16, 17, 18, 19] Evidence Statement before Central Excise Officer Relevancy of Procedure prescribed in Section 9D(1) of Central Excise Act, 1944-It has to be followed in adjudication proceedings as well in criminal proceedings relating to prosecution in ....
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....amination of witnesses, whose statements have been recorded and referred to in show cause notice, even prior to a reply thereto being submitted -Question of cross-examination of witnesses would arise only after statements of witnesses are recorded by relevant authority in course of adjudication proceedings. [para 12]" 25. We find that section 9D is parimateria to Section 138 B of Customs Act 1962 and hence the ratio of the above said decision squarely applicable to this case as well. In this case, the adjudicating Authority has not examined the person who has given the statement which has been relied upon to implicate the Appellant. Also, no opportunity of cross examination given to the Appellant to question the basis on which the co accused has implicated the Appellant in this case. When the procedure set out in Section 138 B is not followed, the statement of the co accused has no evidentiary value. Also, in this case the statement of the co accused has not been corroborated by any other evidence. In view of the decisions discussed in para 6 above, the Appellant cannot be penalized based on the statement of the co-accused alone." 22.6. In view of the discussions above and by re....
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....n from independent sources." 23.3. We also agree with the appellant's claim in this regard that the statements of Shri Sudhir Jha and Shri Dibakar Dey are vague and not corroborated with other RUDs. In this case, Shri Sudhir Jha and Shri Dibakar Dey, both have never been asked by the DRI nor have they themselves disclosed the specific date and time as well as venue pertaining to exchange of specific export documents and/or cash. They had tendered general statements and which are not corroborated with the other RUDs viz. e-mail conversations /CDRs /Bank Statements /Counterfoils of Bank Slips /statements of transporters /Statement of Nirmal Jha in case of Sudhir Jha etc. In support of our view, we rely on the decision in the case of Chandra Shekhar R. Shukla v. Commissioner of Customs (Imports), Nhava Seva [2019 (370) E.L.T. 1449 (Tri. - Mumbai)] 23.4. Therefore, from the above, we are of the considered opinion that the statements of the co-accused cannot be construed as reliable evidence against the appellant in this case. Accordingly, the answer to the question (IV) raised in paragraph 18 of this order (supra) is in the negative. Issue V: Whether the statement recorded from Shri....
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....ment contained in the Container No. TCKU 2571904. In his statement Shri Somnath Sircar stated that Shri Sudhir Jha of M/s. U.S. Clearing Agency had not given the original documents to him and that he had no knowledge about the exporter, namely, Shri Raju Biswas of M/s. Srijita Exports. Shri Somnath Sircar, in his further statement recorded on 06.04.2016, stated that Shri Sudhir Jha had started using the stamp of their Customs Broker firm, M/s. A.K. Sircar & Sons. In his statement dated 07.03.2016, Shri Suman Hazra, employee of M/s. U.S. Clearing Agency stated that all export documents were kept in the office, except the documents related to the exports of M/s. Srijita Exports, which were kept by Shri Sudhir Jha himself; that he sent those documents to the Customs Broker via e-mail on 25th or 26th February, 2016, after getting it from his employer i.e., Shri Sudhir Jha. It has also been stated by him that he got the copies of the documents relating to M/s. Srijita Exports from Shri Bidyanand Jha on 04.03.2016. In his further statement recorded on 04.07.2016 Shri Suman Hazra have stated that he e-mailed copies of the export related documents to the CHA, M/s. A.K. Sircar & Sons from t....
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.... that as per the instruction of Shri Sudhir Jha, they had booked containers for M/s. Akash Ganga Enterprises (IEC No. 0205006183), M/s. Sayantika Enterprise (IEC No. 0213003163) and M/s. Gopals Associates (IEC No. 0204000246) apart from M/s Srijita Export (IEC No. 0213005794), and also received payments in cheque in respect of these IEC holders from Shri. Sudhir Jha. 24.5. During investigation, it was also revealed that M/s. Speedway Logistics Pvt. Ltd was the freight forwarders in respect of the suspected 7 containers dealt by Shri Sudhir Jha. Shri Siddharta Singh, employee of M/s. Speedway Logistics Pvt. Ltd., in his statements admitted that 5 containers were booked for M/s. Sayantika Enterprise and 2 containers for M/s. Gopals Associate, which were as per the instructions of Shri Sudhir Jha. M/s. Speedway Logistics Pvt. Ltd. also submitted the statement of ICICI Bank showing the payment particulars from Shri Sudhir Jha vide letter dated 05.07.2016. 24.6. From the above statements, it is clear that Shri Sudhir Jha had booked the containers in respect of all the exports made by M/s. Akash Ganga Enterprises, M/s. Sayantika Enterprises and M/s. Gopals Associates and M/s Srijita Ex....
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....ay. A letter dated 13.06.2016 appears to have been submitted by M/s. Raj Finoxides Pvt. Ltd. wherein they confirmed that they were not into the export business. 24.9. We observe that in his statement dated 23.05.2016, Shri Sudhir Jha stated that he has received the said documents for clearance of the subject export consignment from one Shri Bhagwat Sharma, who had introduced himself as the manager of M/s. Srijita Export. In his statement, he has stated to have used the stamp of M/s. A.K. Sircar & Sons for the last 2.5 years and used to give the Customs Broker an amount of Rs.8,000/- per month; that he had engaged Shri Manoj Singh as the transporter for M/s. Srijita Export; that he sent all the four containers to Dankuni as per Instructions of Shri Bhagwat Sharma and Shri Bhagwat Sharma might have contacted the driver after container pick up and call them for loading. It also appears from the said statement that he engaged Shri Rajeev Agarwall of M/s. Kunal Ocean Agency Pvt. Ltd, for pick up of all the four containers of M/s Srijita Export including the subject container and paid him in cheque, but he did not have the original export documents of Shipping Bill No. 6092170 dated 25.....
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....wn was given on rent to Shri Prasenjit Sani of 26, Belur Road, Howrah - 711 204 on a monthly rental of Rs.35,000/- from 2014 (mid) under the premise of storage of plastic granules in the said godown. Shri Prasenjit Sani, in his Statement dated 09.06.2016, had stated that he had sub-let the said godown to Shri Sudhir Jha for a monthly rent of Rs.25,000/- since November, 2015 and since then, Shri Sudhir Jha had been using the said godown. Shri Prasenjit Sani, in his statement, has stated Shri Arvind Rana to be the person who was looking after the godown and named him as the person who could throw light on the illegal smuggling of 'Red Sanders'. It was confirmed by Shri Arvind Rana, employee of Shri. Prasenjit Sani that Shri. Sudhir Jha used to keep 'logs' in the godown at the end of January, 2016. In his statement dated 10.06.2016, Shri Prasenjit Sani again reiterated that his employee, i.e., Shri Arvind Rana, had informed him about the availability of red coloured wooden logs at the godown and accordingly, he had asked Shri Sudhir Jha about the said logs, to which it was informed by Shri Sudhir Jha that he was having valid papers for the logs. 24.13. Further Statement of Shri Arvin....
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....nter 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. 25.1. From the statement of Shri. Sudhir Jha dated 24.05.2016, we find that he has mentioned Shri Nirmal Jha as the person who introduced the Appellant to him, in November, 2015. However, we find that Shri Nirmal Jha, in his statement, has denied introducing Shri Sudhir Jha with Shri Sandeep Kumar Dikshit. We also find that the said statement was not relied upon by DRI but supplied by them vide letter under DRI F. No. DRI/KZU/AS/ENQ-13/2016/Pt./1351 dated 08.03.2018, to the appellant. It is also a fact that in his statement recorded on 08.06.2016, the appellant has denied knowing any Shri Sudhir Jha but accepted that Shri Nirmal Jha was known to him since 2008, who, as per the appellant, used to provide him raw intelligence. In this regard, we observe t....
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....ffice is situated is high security zone covered under CCTV coverage and no such evidence or copy of Visitor's Register of DRI, Kolkata was either provided or brought on record in any proceeding held till date substantiating alleged exchange of documents with Shri Sudhir Jha at downstairs of DRI Office or inside DRI Office. The allegations are vague in nature that many other mobile numbers were used for alleged exchange of documents and cash. Neither any details of such mobile numbers have been disclosed. 25.4. It is also seen from the records that the Bank Statement of Shri Sudhir Jha was neither disclosed nor relied upon by DRI in instant case. As per statement dated 24.05.2016, Shri Sudhir Jha had paid for container booking, transporter, etc.As per statement dated 26.10.2016, Shri Sudhir Jha stated that all the payments related to these 16 consignments were given by him which he had received from Sandeep Dikshit @ Rs. 30,000/- per consignment in cash. He used to pay 25000/- per consignment for ocean freight and transport. All the payments related to these 16 consignments were given by Sudhir Jha by cheque.RUDs related to financial details shared by container agent revealed that ....
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....g the payments in respect of the services done by them. Shri Sudhir Jha, in one of his statements, has however, mentioned that the said activities were financed and/or completed with the help of the appellant herein, although without any valid corroborative evidence in support thereof. Thus, we find that Shri Sudhir Jha claiming the appellant to be a key person in the smuggling syndicate is an afterthought, which was only done by his statements recorded subsequent to recovery of the DVD. Hence, there is no merit in the statement of Shri Sudhir Jha implicating the appellant in the alleged offence. 25.9. From the evidences available on record, we observe that all these documents, which had been filed in the name of M/s. Srijita Export and other earlier exports have been fabricated. Most of the statements recorded during the course of investigation indicate Shri Sudhir Jha as the person who has handled all the documents related to the alleged exports involving Red sanders. The name of the appellant was not indicated by any of the persons associated with the export of the current consignment or any of the past consignments. In view of the foregoing, we hold that the statement of Shri ....
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....016 and June, 2019, were retracted by the appellant. Further, he also held that belated retraction has no evidentiary value and the evidences available on record in the form of statements cannot be ignored. On perusal of the appeal records, we find that by letter dated 5-9-2019, addressed to the adjudicating authority, the appellant had retracted all the statements, assigning the reason that the appellant had never stated regarding mis-declaration of value, quantity or description of goods and accordingly, deny the whole statements recorded under section 108 ibid. It has further been stated that the statements were obtained by threat, duress etc. 14.1 We find that the statements were recorded by the department from Shri Mahesh Chandra Sharma on different dates in a span of 3 years. However, the copies of same were not furnished to the appellant immediately on completion of the summon proceedings. Upon receipt of the SCN together with the RUD's, the appellant came to know about the content in the statements, though made by him and thus, had sent the retraction letter within the reasonable time. Thus, it cannot be said that there is inordinate delay in filing the retraction let....
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....tion proceedings, more specifically, during the period between issuance of SCN and passing of the impugned order, it was incumbent upon the learned adjudicating authority to examine the person, who made the statement. However, the adjudicating authority chose to rely on the statement alone as evidence, which is beyond the scope and ambit of the statutory provisions. Thus, contents of the retracted statement cannot simply be brushed aside, to conclude that the appellant has indulged into the activity of undervaluation of goods." 26.3. We observe that the investigation failed to corroborate the retracted statement(s) of Jyoti Biswas with independent documentary evidences. In this regard we take note of the fact that during the course of appellant's posting as Intelligence Officer at DRI, Kolkata during the period 11.01.2012 to 29.02.2016, he was investigating officer of a case mentioned in Paragraph 9.2.1 of said Supplementary SCN, wherein, said Jyoti Biswas was the prime accused and the appellant was instrumental in issuance of 10 SCNs to said Jyoti Biswas proposing penalty and other penal actions under Customs Act, 1962. We observe that the statements of Shri. Jyoti Biswas were re....
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....the appellant used mobile number 8967650859 to contact Sri Sudhir Jha for exchange of documents. In para 5.15.6, while countering the defence argument that no call record has been found between Sri Sudhir Jha and the mobile number 8967650859, the Ld. Adjudicating authority has opined that call record details can not indicate content of conversation. In this regard, we observe that if Shri Sudhir Jha used to collect the documents from the appellant at DRI office he must have contacted the appellant. There must be call detail records during material filing period. But, we find that no such evidence could be noticed from the call records analysis. (d) Further, the tower location of mobile number 8967650859 would have been at Dalhousie or at DRI office, but again the Ld. adjudicating authority has opined that the tower location of said mobile number was at Chandannagar. (e) The tower location of the said mobile was at Chandannagar but, it has been opined by the Ld. adjudicator that the documents using this mobile number were exchanged at DRI, Kolkata or at Dalhousie. The Ld. adjudicator has believed the story of DRI without going in to actual analysis at his own level. 27.1. We fi....
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...., there is no call with Shri Sudhir Jha using the mobile number 8967650859. As per SDR of the mobile number 8967650859, it was registered since 01.11.2013 to August, 2016 in the name of Shri Bikash Basu and thereafter, in the name of Smt. Laizu Bibi. The use of said mobile number during the period of 02.02.2016 to 22.12.2016 by the appellant herein is unrealistic on this ground alone. Technically, it is not possible for any person to have same mobile number with two different subscribers during the period. Before alleging that these mobile phones were used by him it should have been analysed that there are two different subscribers. There is no investigation with Laizu Bibi, the second subscriber. The said number was in use since 01.11.2013 and fling of shipping bill in the instant matter held during 07.04.2014 to 25.02.2016 but there is no call to Sudhir Jha during the said filing period. Hence, the possibility that this number may be utilised for such purpose by the appellant does not arise. 27.3. As regards the CDR analysis with regard to Shri Jyoti Biswas and his associates, we find that the call details with Jyoti Biswas and Divakar Dey have no relevance as the DVD itself had....
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....sake of ready reference, the relevant portion of the paragraph 5.15.6 of the impugned order is reproduced below: - "I find these submission lack any merit as call data records cannot indicate content of conversations took place between the persons involved in the call. In the subject case, call data records clearly suggest that Shri Dikshit was in touch with Shri Sudhir jha (a key member of the smuggling syndicate). I also find that Shri Dikshit did not offer any comments of the 76 calls between Jyoti Biswas (Key member of syndicate involved in multiple cases of frauds under Customs Act) between the period from 01.02.2016 to 21.09.2016. These frequent calls between key members of syndicate clearly suggests a cordial relationship enjoyed by Shri Sandeep Dikshit with Shri Jyodi Biswas and Shri Sudhir Jha." 27.6. Thus, we observe that if Shri Sudhir Jha used to collect the documents from the appellant at DRI office he must have contacted the appellant and there must be call detail records during material filing period. Further, the tower location of mobile number 8967650859 would have been at Dalhousie or at DRI office, but again the Ld. adjudicating authority has opined that the t....
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..... It has been particularly submitted that those purchase documents along with bank statements were also submitted to the ld. adjudicating authority, who had not rebutted the same. Further, we take note of the appellant's submission in this regard that these statements, which were recorded in another case, have been imported and relied upon in the impugned Order-in-Original. In terms of the settled position of law, the said statements of Sri Rudra Prasad Mondal recorded in the case of export under duty drawback scheme through Petrapole LCS are not relevant in the present case of export through Kolkata Port. Hence, we do not find any merit in the conclusion made by the ld. adjudicating authority in this regard with respect to receipt of financial incentives in connection with the alleged offence. Accordingly, the answer to the question raised in paragraph 18(VIII) is in the negative. 29. In view of the detailed observations in the preceding paragraphs, we summarize our findings in respect of the issues framed at paragraph 18 of this Order, as under: - I. The information available in the said DVD cannot be relied upon as admissible evidence against the appellant in the impugned pro....
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.... the Customs Act respectively. There is no other corroborative evidence available on record to justify the allegations against the appellant. Hence, we find the allegations to implicate the appellant in the past offence are unsubstantiated and uncorroborated. 31. Having addressed the issues under dispute, we now proceed to examine the applicability of the relevant statutory provisions invoked in this case to impose penalties on the appellant. We find that penalties have been imposed on the appellant under Section 114(i) and 114AA of the Customs Act, 1962. For the sake of ready reference, the relevant Sections of the Customs Act, 1962, are reproduced below: - * Section 114: "Section 114 - Penalty for attempt to export goods improperly, etc. - 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, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the e....