TaxTMI 
TaxTMI 
2025 (8) TMI 418
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....f the Customs Act for acts of omission and commission in playing a role in the conspiracy hatched for the purpose of diverting the export bound gold jewellery to the domestic area with the sole motive of unjustly enriching himself and other members of the syndicate. 2. It transpires from the records that based on some specific information, the Directorate of Revenue Intelligence DRI, Delhi Zonal Unit, intercepted two international passengers, namely, Mukesh Kumar Sawalchand Bohra and Ranjit Kumar Hirachandji Jain at the T-3 Terminal of IGI International Airport on the intervening night of 27/28 October, 2015. These two international passengers were supposed to be hand carrying the gold jewellery manufactured by the appellant and these two passengers had tickets to go to Dubai and Hongkong. It is alleged that after security and immigration clearance, while they were waiting in the transit lounge, they handed over the gold jewellery bags to two domestic passengers Jinesh Kumar Jain and Manoj Vaishnav, who had tickets to go to Mumbai. 3. It is seen that certain manufacturer of gold jewellery had availed the benefit of a Scheme called "Export Against Supply by Nominated Agencies"....
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.... The second proviso to the opening paragraph of the Notification was deleted by Notification No. 33/2015-Cus dated 15.05.2015 and the relevant portion is reproduced below: "Notification No. 33/2015-Cus dated 15.05.2015 In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby directs that each of the notification of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed shall be amended or further amended, as the case may be, in the manner specified in the corresponding entry in column (3) of the said Table, namely : - Serial number Notification number and date Amendments (1) (2) (3) ***** ***** ***** 5. 57/2000-Customs, dated the 8th May, 2000, G.S.R. 413 (E), dated the 8th May, 2000 In the said notification,- (I) in the opening paragraph (i) in clause (a), for the word, letter and figures "paragraph 4A.14", the word, letter and figures "paragraph 4.46" shall be substituted; (ii) in clause (b), for the wor....
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.... Vaishnav in lieu of monetary consideration and in collusion with Shri Mahendra Amritlal Jain and Sh. Komal Jain were instrumental in attempted diversion of two export bound live consignments to the domestic area which were intercepted by the DRI. It is on record that Sh. Mahendra Kumar Amrit Lal Jain utilized the services of all these four persons for the purpose of facilitating the said diversion of gold jewellery,***** 80. I find that in this case material evidence such as recovery of export bound gold jewellery from the possession of the domestic passenger and the statements given by all the concerned persons divulging the modus operandi establishes fraud against revenue which can not be exonerated. ***** 81. I find that it is an undisputed position that in the instant case the show cause notice had been issued for having diverted duty free imported goods or goods manufactured out of such duty free imported goods into the domestic area. These goods i.e. the gold jewellery is thus, liable for confiscation under Section 111 of the Act. The investigation has proved beyond doubt that all the concerned persons/parties were instrumental in their capacities in all di....
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....arned counsel for the appellant pointed out that the courier passengers were not working at the behest of the appellant and there is no evidence on record which may suggest that the appellant booked the tickets or paid any remuneration. Learned counsel also submitted that the Principal Commissioner has relied upon statements made by certain persons under section 108 of the Customs Act, which statements could not have been relied upon as the procedure contemplated under section 138B of the Customs Act have not been followed. Learned counsel also submitted that penalty under section 114AA of the Customs Act could not have been imposed upon the appellant as the appellant was not responsible for the alleged diversion of the export goods nor did the appellant abet the perpetrator. Learned counsel also pointed that the appellant was not connected or involved in any documentation required for import or export of the subject goods nor the appellant signed any document for clearance or made anyone else sign any document. 10. Shri C. Dhanasekharan, learned special counsel appearing for the department, however, supported the impugned order and submitted that the penalties have been correct....
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....y consider necessary to give evidence in any inquiry which such Officers are making. The statements of the persons so summoned are then recorded under these provisions. It is these statements which are referred to either in section 9D of the Central Excise Act or in section 138B of the Customs Act. A bare perusal of sub-section (1) of these two sections makes it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings....
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....ssibility that statements of the witnesses have to be recorded before the adjudicating authority, after which such statements can be admitted in evidence." ( emphasis supplied ) 17. The same view was taken by this Bench in Drolia Electrosteel. The Tribunal, while examining the provisions of section 9D of the Central Excise Act, held: "13. Of the above, the 35 statements of various persons recorded under the Central Excise Act will be relevant to the proceedings only as per section 9D which lays down the procedure to be followed to make them relevant and the exceptions to such procedure. ***** 14. Evidently, the statements will be relevant under certain circumstances and these are given in clauses (a) and (b) of subsection (1). There is no assertion by either side that the circumstances indicated in (a) existed in the case. It leaves us with (b) which requires the court or the adjudicating authority to first examine the person who made the statement and form an opinion that having regard to the circumstances of the case, the statement should be admitted in evidence. Of course, the party adversely affected by the statement will have to be given ....
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....d speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 16. If none of the circumstances contemplated by clause (a) of Section 9D(1) exists, clause (b) of Section 9D(1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D(1), viz. (i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and 17. There is no justification for jettisoning this procedure, statutorily prescribed by plenary Parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section 9D(1), makes it clear that, the provisions contemplated in the sub-section....