TaxTMI 
TaxTMI 
2026 (4) TMI 1448
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....utka also, in addition to gold. Intelligence gathered further indicated that Vapi based persons viz. Shri Sajahan Chowdhury and his brother, of this syndicate were running a jewellery shop and also a gold refinery in Vapi and above Pax had been instructed to hand-over smuggled gold to Shri Sajahan Chowdhury at Vapi. 1.1 Acting on the above intelligence, on 27.06.2019, DRI officers intercepted the said two pax along with their baggage while exiting the green channel of the Arrival Hall of Terminal 2 of SVPI Airport, Ahmedabad. On being asked, they introduced themselves as Sahidul Abdul Chowdhury and Mohmad Sarfraj Mansuri by showing their passports and informed that they were coming from Abu Dhabi via Etihad Airways Flight No. EY 226. On being asked whether they were carrying any gold or any other dutiable goods with them, in person or in their baggage they stated that they were not carrying any such item with them or in their baggage. Thereafter, both the passengers were brought to the arrival hall of SVPI Airport, Ahmedabad for their personal search and search of their check-in baggages under panchnama dated 27.06.2019 drawn at arrival Hall of SVPI Airport, Ahmedabad. 1.2 Up....
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....re drawn by the DRI officer under panchnama dated 27.06.2019. 1.6 The above mentioned items recovered from Sahidul Abdul Chowdhury viz. two Gold Chains were totally weighing 693.14 Grams in total having purity 999 valued at Rs. 2205640/- (Tariff Value) [Rs. 2425990/-(Local Market Value)] 1.7 Two Gold Bars recovered from the three packets of Brown Colour Paste i.e. One Gold Bar weighing 673.610 Grams having purity 999 valued at Rs. 2144672/- (Tariff Value) [Rs. 2358930/-(Local Market Value)] & other Gold Bar weighing 28.980 Grams having purity 831.2 valued at Rs. 76623/- (Tariff Value) [Rs. 84303/-(Local Market Value)]. Saffron weighing 5000 Grams and Gutka (2000 pouches) were attempted to be smuggled into India with an intent to evade payment of Customs duty and it clearly did not constitute part of a bonafide baggage as it was in 'commercial quantity'. Thus, under the reasonable belief that the aforesaid goods were attempted to be smuggled by Shri Sahidul Abdul Chowdhury were liable for confiscation, and since the same were in violation of the provisions of Customs Act, 1962 and Baggage Rules, they were detained for further investigation under the aforesaid panchnama....
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.....2019 & 29.06.2019 under section 108 of the customs Act, 1962 wherein he interalia that: (i) from 2010 onwards he joined his elder brother Sajahan Chowdhury's refinery shop M/s. Sadguru Touch Refinery, situated at Shop No. 2 & 4, Poonambhai Ki Chawl, Joona Ram Mandir, Near Zanda Chowk, Vapi ("Sdguru"). In Sadguru, they carried out melting of old and used Gold and Silver and also did purchase of gold and Silver and after melting they sold it in market; (ii) one of his friends Shri Tarik Shaikh having mobile 937700241 and residing at Afsara Market, Vapi introduced him to his Sister's husband named Shri Mohammad Azam having mobile 8546075577 and residing at Andheri, Mumbai and Shri Moham Azam was already in touch with his elder brother Shri Sajahan Chowdhury; (iii) Shri Mohammad Azam gave his elder brother Shri Sajahan Chowdhury idea of smuggling of pure Gold in the form of ornaments, biscuits, powder & paste form and other costly items such as saffron, Gutkha (RMD brand). Shri Mohammad Azam informed his elder brother Shri Sajahan Chowdhury that he used to do this smuggling with aid of Shri Shamim of Dubai having mobile No. 00971502275263 and India m....
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....assisted in smuggling of those Gold in chain and paste forms; that the Saffron of Iran Origin, Gutkha (RMD brand made in India) belonged to Shri Shamim as he had invested in purchase of those goods and he along with Shri Mohmad Sarfraj Mansuri had knowingly Indulged and assisted in smuggling of those goods which were to be handed over to Shri Mohammad Azam of Mumbai for further disposal; (ix) his elder brother Shri Sajahan Chowdhury was in direct contact with Shri Shamim and they both used to decide the dates and time when he along with other passenger/carrier had to go Dubai to collect the Gold and smuggle it into India by taking Green channel route from Airports; that on being asked, as to why they were coming to Ahmedabad Airport only and not nearby airports in spite of staying at Vapi, he stated that his elder brother had informed him that Shri Shamim had made arrangement / setting with some Customs officer posted at Ahmedabad Airport who would facilitate the clearance of passengers carrying the smuggled gold and other goods; (x) Shri Shamim used to send the photo of the passengers who were carrying the gold and other goods for smuggling through WhatsApp to hi....
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....8.06.2019 & 29.06.2019 under section 108 of the customs Act, 1962 interalia stated that: (1) his friend namely Shri Sahidul Chowdhury @ Tinkubhai of vapi (Mob. No. 9898006263) requested him to travel Dubal along with him for which he (Shri Sahidul Chowdhury) said he would bear the expenses of the said journey; that in return, he (Shri Sahidul Chowdhury) asked him to carry some quantity of gold, in his (Mohmad Sarfraj Mansuri) personal possession and saffron and RMD gutka in check in baggage while coming from Dubai to Ahmedabad International Airport; that he agreed with Sahidul Chowdhury's proposal and accordingly, he along with Shri Sahidul Chowdhury went to Dubai on 25.06.2019 for the said purpose through Spice Jet flight; that they stayed there in a hotel; (2) оп 26.06.2019 one friend of Sahidul Chowdhury named Shamim Azmi met them and he gave 02 jeans containing gold concealed in waist band of jeans and 04 chains to Shri Sahidul Chowdhury. 1.13 Statement of Shri Chowdhury Sajahan Jahangir S/o Shri Chowdhury Jahangir was recorded on 28.06.2019 & 29.06.2019 under section 108 of the customs Act, 1962 wherein he interalia stated that: (1) wi....
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....ce Unit (AIU), SVPI Airport, Ahmedabad. 1.15 Considering the above, Shri Sajahan Chodhury, Shri Sahidul Chaudhary, Shri Mohmad Sarfaraz Mansuri, were arrested on 29.06.2019 in exercise of provisions of section 104 of the Customs Act, 1962. The bail applications filed by them were rejected by the lower courts. They were enlarged on default bail by Hon'ble ACMM Court, Ahmedabad after completion of 60 days from the date of their arrest. 1.16 Statement of Shri Pankaj Magnani @ Munna was recorded on 30.06.2019 and 16.07.2019 under the Customs Act, 1962 wherein he interalia stated that: (1) He knew Shri Somnath Chaudhary who was Customs Officer since last 10 to 12 years; that he was posted at Ahmedabad International Airport in Customs Department; that 5 to 6 months ago Shri Somnath Chaudhary had informed on telephone that his cash would come to Angadiya in his name (Pankaj Magnani) and requested him to collect the said cash from Angadiya, that during last five to six months he (Pankaj Magnani) had collected the cash belonging to Shri Somnath sir for around 12 to 13 times from Purnima Angadiya, Ahmedabad; (2) one Shamim used to inform him on telephone sending m....
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....63331) for the period from 20.02.2019 to 06.06.2019 including the talk on 29.05.2019 and with Somnath Chaudhary on his mobile number 9913197989. 1.17 The above statement regarding receiving of money from Purnima Angadia was further corroborated by the department by Angadia slips provided by Purnima Angadia, Vapi vide their letter dated 03.07.2019 evidencing the payment made to Shri Pankaj bhai and the sender of the money was Shamim and others. As per the said Angadia slips total payments of Rs. 5,30,000/- as detailed at page No. 17 of 442 of OIO (running page No. 100) received from Sajahan bhai was given to Pankajbhai through their Ahmedabad branch during last two months. He admitted that total cash of Rs. 5,30,000/- which was received from M/S, Purnima Angadiya Sevice was handed over by him to Shri Somnath Chaudhury. 1.18 Based on above revelation, search of the residence premises of Shri Somnath Chaudhary was carried out at 22, Shayona Vihar, C.P.Nagar, Ghatlodia on 30.06.2019, wherein his mobile number 9082228222 was found containing some incriminating messages, therefore the same was resumed under panchnama dated 30.06.2019. However, the mobile I phone 6 bearing mobile 99....
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....ment of Shri Somnath Chaudhary was recorded on 05.08.2019 wherein in interalia stated that: (i) he had an informer who introduced himself as Shamim introduced one person as his friend who could also provide inputs and he had also taken his mobile number; Shamim used to give him inputs out of which some materialized and some did not; His informer introduced himself as Shamim and he was in contact occasionally during investigation of another case of Gold by him; (ii) Shri Somnath was communicated that he had stated in his statement dtd 29.07.2019 that he had nothing to do with cash money sent by Shri Shamim of Dubal, from Purnima Angadia to Shri Pankaj Hiralal Magnani alias Munna for onward delivery to him, as claimed by Shri Pankaj Hiralal Magnani alias Munna in his statements dated 30.06.2019 and 16.07.2019; that further, he had stated that the concerned 08 nos of the said 16 cash delivery receipts of Purnima Angadia Service, Vapi, for delivery of the cash to Shri Pankaj Magnani alias Munna did not pertain to him in anyway. (iii) Thereafter, in front of Shri Somnath, the aforesaid person whom he knew as Munna, of Aniket Store, was asked whether he collect....
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....AI Versus M/s GANPATI OVERSEAS THROUGH ITS PROPRIETOR SHRI YASHPAL SHARMA & ANR. Reported 2023 (10) TMI 364 - Supreme Court held that - "It is in this context that the customs officer who is empowered under Section 108 to record statement etc. has the onerous responsibility to see to it that the statement is recorded in a fair and judicious manner providing for procedural safeguards to the concerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice. It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards. Certainly a statement recorded under duress or coercion cannot be used against the person making the statement. It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers." * Impugned Order heavily relies upon defective and irrelevant angadia slips without even referring to anomalies indicated by the appellant on records. The appellant has also placed additio....
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....I custody and are given to shift blame onto others. * BURDEN OF PROOF: The appellant never met the smugglers; no passenger identified him; he was not present during any smuggling attempt and no money trail leads to him. The departments burden of proof is not discharged. * No smuggler, no carrier, no Angadia, no passenger has ever stated that: they met the appellant or they saw him or he spoke to them or he gave instructions or he facilitated their clearance or he handled money, or that they even recognized him. At best, some statements say "a Customs officer helped us." This is classic hearsay. The OIO then supplies the missing identity by pure conjecture. This is impermissible in law. * The impugned order has imposed penalties on assumptions and presumptions such as- i. The appellant was the Custom Officer that Shri Shamim Ahmed, Shri Sqhjan Chaudhary, Shri Mohammad Azam, Shri Shahidul Chaudhary and Shri Pankaj Magnani were in touch. ii. that once LED TV brought by Shri Shamim was cleared by a Lady officer on duty under an instructions of another Custom Officer Shri Dhiraj Kumar who was directed by the appellant. iii. Despite s....
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.... ACS. The intercepted passengers were not stopped or subjected to any detailed checks by the officer entrusted with these duties. The Appellant had no control over such officers. * NO NEXUS WITH ON DUTY OFFICERS : NO INVESTIGATIONS: No officer on duty at dates referred in SCN Table A is investigated. * The statements of both Shri Sahidul Chowdhury and Shri Sajahan Chowdhury are similarly worded and uses intricate legal terms which may not be known to them. Rejecting their cross examination has created handicap. * THEORY OF PHOTOHRAPHS IS FALSE: BURDEN OF PROOF NOT DISCHARGED- In view of above the theory of advance sharing of photographs falls flat as concocted. No such photographs are recovered from the Phone of Shri Shamim or any other person. It is not for the Appellants to prove that there were no photographs and there is no evidence to discharge the burden of proof for allegations that such photographs even existed. * NO PROBABILITY - COLLECTOR OF CUSTOMS, MADRAS AND OTHERS Versus D. BHOORMULL INAPPLICABLE - The learned AA while indicating anomalies on records has wrongly placed reliance upon the decision of COLLECTOR OF CUSTOMS, MADRAS AND O....
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....isted. * NO COMPLIANCE TO SECTION 138C FOR DIGITAL EVIDENCES: It is contended that there are huge procedural lapses in matters of digital evidences such as recordings and audio clips. There are no seizure memos for seizure of mobile phones of Shri Pankaj Magnani. He has not signed any certificate as a lawful owner / operator of such phones. There is no evidences of chain of custody of digital equipment like phones. Extracts presented as digital evidences are unreliable. The appellant places reliance on rule laid by Hon'ble Supreme Court in Anvar P.V Versus P.K. Basheer and others - 2014 (9) TMI 1007 - Supreme Court. 2.1 Further, after the hearing, additional submissions have been made to bring out the chronology of events. CHRONOLOGY OF EVENTS Date Event description Ref. in Records Remarks Page No 27.06.2019 14.45 Hrs Flight - Etihad EY 226 - ETA 14.45- Seizure of Gold, Safron and Gutkha from PAX Shri Sahidul Chowdhary @Tinku & Shri Mohamad Sarfraj Mansuri Seizure Panchanama dated 27.6.2019 No reference of appellant in Panchanama Volume-III Page 972-981 27.06.2019 Search at gold refinery shop of Shri Sajahan Chowdhury at ....
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....#9675; Shamim Dubai's money was for appellant ○ Admitted having done some bank transactions at request of Appellant ○ Never knew Sajahan but confirmed his statement ○ Ratified irrelevant and defective angadia slips having no reference of Shamim or Sahjan or the appellant ○ foreign origin goods trader in contact with another foreign goods dealer Shamim Dubai. ○ Statedly Knew Shamim for last 5-6 months whereas transaction on records are May 2019 onwards Volume-III 2nd Para @ Page 1043 @Page 1066-1067 for stmnt on slips @Page 1076- 1085 Copies of vague Angadia Slips 10.7.19 Receipt of CDR NO TRANSCRIPTS 29.7.2019 1st Statement of Appellant Somnath Chaudhary ○ Refuted statements of PAX Sahidul and denied that the term "Chaudhary Sahab" in his 3rd or 4th party hearsay references are not for him. ○ Refuted Statement of Pankaj known to him for several years only as "Munna" of Aniket Consumer Stores. ○ When asked about Shamim Dubai he said did not know him but one of his informer is Shamim but don't know his full details either. Volume-III @ Page 1102- 1107 05....
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.... on a pre-determined narrative moulded by the "syndicate". The so-called "intelligence" (SCN Para 1) does not mention the Appellant by any concrete role. and is not supported by surveillance, financial records, or independent witnesses. * ARRIVING PAX GAVE ONLY ABBRIVIATED SURNAME - The bullet point 1 of page 58 of the impugned seizure SCN Dated 23.12.2019 that 'other co-accused have also mentioned his name at very instance when they were apprehended at SVPI Airport, Ahmedabad on 27.06.2019' is incorrect. There is no statement dated 27.06.2019. The reference to mention of "Chaudhary Saheb" in statement of Sahidul dated 28.6.2029 is statedly a hearsay of third party Sahidul PAX by a fourth party Sajahan of Vapi refinery telling him that a fifth party Shamim has setting with some Chaudhary Sahab. The references and mentions are without full name or without phone number, without identity credentials is vague, unspecific and cryptic. * Even alleged Vapi based refiner of syndicate Shri Sajahan was not having full name or phone number of the Custom Officer. * FULL NAME - FOREIGN GOODS TRADER PANKAJ BHAI IMPLICATED THE APPELLANT - a. For first four days....
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.... ix. The syndicate successfully diverted investigations in this regard. * NO PROBABILITY - Hurried ratification by Pankaj Magnani of Defective, unnamed, sorted and selected angadia slips received under a handwritten note of Ratan Prajapati is in an undue haste to absolve himself and his business nexus with alleged syndicate to divert investigations by implicating the appellant. Consequently his business, his commercial nexus with syndicate and his sources of foreign origin goods remained investigated. * REVERSE ENGINEERING OF CDR THEORY- ASSUMED PROBABILITY IS NOT AN EXCUSE FOR ABSENCE OF INVESTIGATION - a. The quantification of past smuggling as in SCN Page 123 Table- A is derived from quantities purchased by domestic buyers Vikas Pawar from Vapi Refiner Shri Shahjan. These dates are taken as probable dates of smuggling without any supporting documents such as passport, boarding passes, manifests etc, CCTV Footage. Even a single mail to Airline referred in Table -II would have confirmed whether alleged PAX arrived or not. Such dates are linked to various PAX names in Table -B without proof of their actual arrival. b. The Findings of impugned Or....
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....e appellant never met the smugglers; no passenger identified him; he was not present during any smuggling attempt and no money trail leads to him. The departments burden of proof is not discharged. * No smuggler, no carrier, no Angadia, no passenger has ever stated that: they met the appellant or they saw him or he spoke to them or he gave instructions or he facilitated their clearance or he handled money, or that they even recognized him. At best, some statements say "a Customs officer helped us." This is classic hearsay. The OIO then supplies the missing identity by pure conjecture. This is impermissible in law. * NO REFERENCE IN CHATS: It has also been alleged in the said para 58.11 at page 249 and 250 that there have been various chats between the masterminds and the carriers wherein there is reference to the Appellant. It is submitted that not a single chat or message bears any reference to the Appellant by name. The allegations are merely a coverup for the lack of evidence and for absence of discharge of burden of proof. 3. Learned AR, defending the case for the Department, submitted that the findings based on investigation, as recorded in the impugned or....
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.... 11 of 442 28.06.2019 & 29.06.2019 Para 6, Page No. 11 of 442 Arrested on 29.06.2019 and were enlarged on default bail by Hon'ble ACMM Court, Ahmedabad after completion of 60 days from the date of arrest. Para No. 8, Page No. 16 of 442 further statement on 12.10.2019 Para 30, Page No. 50 of 442 another statement dtd. 08.07.2020 Para 32.1, Page No. 64 of 442 mastermind of the syndicate and carriers in the whole modus of smuggling gold from Dubai to India at SVPI Airport, Ahmedabad. Para 43, Page No. 152 of 442 4 Mohammad Azam Jalaluddin, Mumbai (Mob No. 8546075577) Mastermind in the whole syndicate. He gave idea of smuggling gold to Sajahan Chowdhury and involved in smuggling gold and other items at SVPI Airport Para 33, Page No. 64 of 442 Arranged meeting of Sajahan Chowdhury and Shamim Azmi Para (xiv), Page No. 69 of 442 06.10.2020 Para 33, Page No. 64 of 442 further statement dtd. 07.10.2020 Para 33.1, Page No. 66 of 442 further statement dtd. 08.10.2020 Para 33.2, Page No. 71 of 442 Arrested on 08.10.2020 ....
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....tion 104 of the Customs Act, 1962 and was enlarged on default bail by Hon'ble ACMM Court, Ahmedabad after completion of 60 days from the date of his arrest. Para 26, Page No. 27 of 442 further statement dtd. 28.12.2020 Para 36, Page No. 109 of 442 Played a pivotal role as "facilitator" in conspired smuggling activity and instrumental in organizing schedules of date, time and flight as per his convenience/availability as on duty AIU officer, for passengers carrying smuggled gold into India through Ahmedabad Airport. Para 115, Page No. 399 of 442 Somnath Choudhary's mob No. 9913197989 was reported lost by his wife on the next day i.e. on 30.06.2019, of arrest of Sahidul Chowdhury and Mohamad Sarfraj Mansuri on 29.06.2019. This was done deliberately by Somnath Chaudhary to avoid surrendering the custody of mobile phone (purportedly containing photos of passengers/carriers carrying gold) to the investigating agency. Para 11, Page No. 18 of 442 & Para (xvi), Page No. 414 of 442 9 Dhiraj kumar he has acted as per the directions of his- superior officer, Shri Somnath Chaudhary, Superintendent, AIU, Ahmedabad air....
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....rt finds that there has been complete denial of cross-examination, which is now statutorily provided for under Section 138B. The same is reproduced below:- "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 p....
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....of cross-examination of witnesses is not justified merely on the ground that they have not retracted their statements. VII. 2018 (361) E.L.T. 90 (P & H) in the case of Ambika International Vs. Union of India, wherein it was held that the procedure under Section 9D of the Central Excise Act (pari materia to Section 138B of the Customs Act) must be followed both in adjudication and prosecution. VIII. 2018 (18) G.S.T.L. 415 (Ker.) in the case of Mohammed Fariz & Co. Vs. Commissioner of Customs, Cochin, wherein it was held that denial of cross-examination of a person whose statement is relied upon renders the order a nullity. IX. 2016 (340) E.L.T. 67 (P & H) in the case of Jindal Drugs Pvt. Ltd. Vs. Union of India, relying on Parmarth Iron Pvt. Ltd. [2016-TIOL-2749-HCP&H-CX], wherein it was held that cross-examination is mandatory and the Adjudicating Authority cannot rely upon statements without examination-in-chief. X. Ambika International Vs. Union of India (CWP No. 12615/2016 dated 17.06.2016), also reported at 2016 (337) E.L.T. A204 (S.C.), wherein it was reiterated that examination-in-chief is necessary to make statements admissible under the l....
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....diya, who are alleged to have handled the Angadiya slips and transactions, have not even been issued show cause notices despite their purported involvement in handling payments relating to contraband goods. The denial of cross-examination of such crucial witnesses has caused serious prejudice to the appellant. In view of the above, such statements and documents ought not to have been relied upon. Alternatively, the persons giving such statements should have been subjected to cross-examination, particularly in light of the legal position emerging from the judicial precedents discussed hereinabove and the mandatory requirements of Section 138B, which are equally applicable to adjudication proceedings. 4.3 There is no evidence on record in the form of passport details of the alleged passengers or their dates of arrival and clearance from the airport on the dates when they are alleged to have brought contraband goods and exited with the connivance of the present appellant. The Department has failed to establish any correlation between the call data records, the dates of arrival of the passengers, and the duty roster of Shri Somnath Chaudhary, or the presence of any other officers wh....
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....uct/adhesive tape Gold (Brown colour paste inside transparent packet) 613.2 6 Check-in Luggage Bag (Brown Colour Trolley bag) Polythene bundles containing 10 pouches (each weighing 25 gms) Saffron (Zibad Termes) Origin Iran 12 x 10 x 25 = 3000 7 80 pouches (each weighing 25 gms) Saffron (Zibad Termes) Origin Iran 80 x 25 = 2000 8 20 bundles each containing 100 pouches (each weighing 4 gms) Gutka (RMD Brand made in India) 20 x 100 x 4 = 8000 2.2 Upon personal search of Shri Mohmad Sarfraj Mansuri, the officers recovered chains which seemed to be of gold from right and left pockets of trousers (Black in colour) and one packet secreted /stitched between the outer and inner cloth of the trouser waist. The details of gold in chains as well as paste form and other items found during the personal search of Shri Mohmad Sarfraj Mansuri and his baggage search were inventorized as under:" Sr No Name of Cloth / Luggage Packing Material Name of the Goods Weight (Gms) 1 Trouser (Right side Pocket) One white colour red printed polyethene bag Yellow Metal Chain 348.69 2 Trouser (Left side Pocket) One white....
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.... against the officer cannot be sustained, the case of the appellant merits acceptance. Further, this Court also finds substance in the submission of the appellant that the penalty imposed under Section 112(b) cannot be sustained. In this regard, Section 112(a) and (b) are reproduced below:- "112. Penalty for improper importation of goods, etc.- Any person,- (a) 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 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, 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 5 [not exceeding the value of the goods or five thousand rupees], whichever is the greater; 1 [(ii) in the case of dutiable goods,....
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....ve not been subjected to cross-examination and, therefore, lack evidentiary value. The adjudication has proceeded by placing reliance on such untested statements as well as on Angadiya records, which have not been properly brought on record in accordance with law and hence cannot be relied upon. Further, the call data records (CDR) have been relied upon without any proper transcription or corroborative material, which is contrary to the legal position laid down in Commissioner Vs. Kamal Bajaj, reported in 2016 (333) E.L.T. A178 (Tri.-Del.). Accordingly, the reliance placed on such material is unsustainable in law. The contraband recovered on the day of inspection also does not inspire in favour of conspiracy theory. The Contraband is stated to be gold chains, gold in paste form so made as will defy metal detectors kept in sewn packets stitched to the pant, lady suits, saffron and Gutkha. There is also no allegation or statement that such contraband needed any connivance/ collusion at the port of embarkation with their customs or security. The theory therefore has loose ends and is not plausible. 5. Appeal of appellant Shri Somnath Chaudhary is therefore liable to succeed. App....
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....ell) who had also not named the appellant as a 'facilitator'. (iii) Ld. Adjudicating Authority has wrongly implicated the appellant without considering the details of cases booked by him on the inputs received by Shri Shamim Ahamad (page 102 of appeal memo) based on which the appellant identified Shri Shamim Ahamad as informer and explained the calls received from him, which are relied by him. The details of all these cases were placed by appellant before Ld. Adjudicating Authority under reply dated 10.10.2024. The same is nowhere rebutted in the impugned order. (iv) The sole evidence of alleged quid pro quo cited in the show cause notice to support the allegation of 'facilitation' against the appellant, is that Shri Shamim Ahmad had given one LED TV to appellant, is found false by Ld. Adjudicating Authority. It is held in the impugned order that there is no evidence of receipt of any TV by appellant. (v) Section 112 (b) of Customs Act, 1962 is not applicable to appellant inasmuch as the appellant has not acquired possession of or was in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchased or in any ot....
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....regarding the identity of the officer who allegedly facilitated his smooth exit. In response, although he did name an officer, the officer so identified was not the present appellant. This material fact has been completely overlooked. The testimony the said passenger to the above effect, clearly negates the allegation of facilitation. The findings recorded in the impugned order, therefore, rest merely on presumption and assumption, without any cogent or corroborative evidence, and are consequently untenable in law. * It is further submitted that, as per the table of findings referred to above (Sub-para (ii) of the OIO at page 425), at Sl. Nos. 5 and 6, it is alleged that the passengers arrived on 13.06.2019 and 18/19.06.2019 and were facilitated by the appellant. However, this allegation is factually unsustainable. On 13.06.2019, the appellant was off duty, as evidenced by the duty rosters dated 07.06.2019 and 14.06.2019 issued by Customs, Airport (annexed herewith as Annexure-A & B). Therefore, the appellant could not have facilitated any passenger on that date. Further, with respect to the alleged incident dated 18/19.06.2019, the Ld. Adjudicating Authority itse....
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....ating Authority has erroneously implicated the appellant without duly considering the material evidence on record. In this regard, the appellant had specifically furnished details of cases booked by him on the basis of inputs received from Shri Shamim Ahmad (as reflected at page 102 of the appeal memo). It was on the strength of such prior interactions that the appellant had known Shri Shamim Ahmad as an informer and duly explained the nature and context of the calls received from him, which have otherwise been relied upon in the impugned order. It is further submitted that comprehensive details of all such cases were placed before the Ld. Adjudicating Authority vide reply dated 10.10.2024. However, the impugned order is conspicuously silent on this crucial aspect and fails to rebut or even consider the said evidence. Such non-consideration of relevant and material facts renders the findings vitiated and unsustainable in law. * The sole piece of evidence cited in the show cause notice to substantiate the allegation of "facilitation" against the appellant is the purported quid pro quo, namely, that Shri Shamim Ahmad had gifted an LED TV to the appellant. However, this alleg....
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....t so as to bring his case within the ambit of Section 112(b) of the Customs Act, 1962. Consequently, the invocation of the said provision against the appellant is wholly misconceived and unsustainable in law. * It is respectfully submitted that the appellant's name does not find mention at any stage in the alleged financial trail purportedly unearthed by the DRI and set out in the show cause notice. Furthermore, no material whatsoever has been brought on record to establish any financial nexus or connection of the appellant with the alleged transactions. In the absence of such evidence, the allegations against the appellant remain wholly unsubstantiated and unsustainable in law. * The citations in support of the contentions made herein above:- 1) This Hon'ble Tribunal in the case of AMIT DAS Vs. Commr of Customs, Mundra held in Final Order No. 12833/2024 dated 26.11.2024 that statement of co-accused not corroborated by any other evidence cannot be relied. In the present case half of the statement of co-accused Shri Shamim has been held to be untrue in LED TV gifting matter after due perusal of CCTV footage by the Ld Pr Commissioner, the first adjudicating....
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.... that it is incorrect to contend that no new facts have emerged after 23.09.2019. In this regard, it has been noted that voluntary statements of various co-noticees, namely Shri Sajahan Chowdhury, Shri Mohamad Azam, Shri Raujesh Dhakkad, Shri Akkhil Dhakkad (along with audit evidence), Shri Sankrin Jugdar, Shri Dilip Jugdar, Shri Tejas Sah, Shri Rahul Jain, Shri Syed Rasul, and Shri Hafizur Rehman Khan, as well as certain audio evidence, were recorded, on the basis of which the investigation agency proceeded to implicate Shri Sujeet Kumar in the show cause notice (as recorded in paragraph (iv) at page 423 of the impugned order dated 08.04.2025). However, it is pertinent to submit that none of the aforesaid co-noticees, in their respective voluntary statements, have in any manner referred to or implicated the appellant as a "facilitator" or otherwise connected him with the alleged activities. In these circumstances, the allegations against the appellant are wholly unsustainable and devoid of merit. In the absence of any incriminating statements, corroborative documentary evidence, or other substantive material linking the appellant to the alleged offence, such serious allegations re....