TaxTMI 
TaxTMI 
2026 (9) TMI 1295
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....from M/s. Metal World FZE, Sharjah, UAE. During examination at the docks, Customs officers recovered 27 gold bars of 1 kg each (purity 995) in a polythene inside metal box hidden within the scrap in Container No. TTNU 2689561. The concealed items were seized and confiscated under Sections 111 and 118 of the Customs Act, 1962. 2.1 Examination of two more containers Nos. GATU 1260784 and TGHU 3084553 covered under Bill of Lading No. DUBASRMUN 6515 dated 13.07.2017 resulted in recovery of 175 cartons of "Gudang Garam" cigarettes concealed in HMS scrap. The cigarettes along with the scrap were seized under the Customs Act, 1962 and Cigarettes and Other Tobacco Products Act, 2003. In all consignments, the consignor was M/s. Metal World FZE, Sharjah and the consignee was M/s. Bhagyoday Enterprises, Ahmedabad. The market value of the gold based on Bullion Market of Gujarat was Rs. 7,84,08,000/- whereas 12,24,000 sticks of cigarettes recovered from container No. GATU 1260784 and 12,96,000 sticks of cigarettes recovered from container No. TGHU 3084553 were valued at Rs. 7.50 per cigarette stick, as per the valuation report. 2.2 The investigation was conducted by the department and the....
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....2 dated 12.08.2022) in Customs Appeal No. C/10061/2022 (b) Gobinda Das vs. CC (Prev.) - Manu (CK)0197/2023 (c) UOI vs. Kisan Ratan Singh Criminal Appeal No. 621 of 2001 (Bombay High Court) (d) Shri Dharnidhar Ghosh vs. CC (Prev.) -(Order No. 77886/2022 dated 09.12.2022) in Customs Appeal No. C/75242/2022 4. Learned Counsel for Shri Sanjay Shah while adopting all the legal arguments taken by learned Counsel for Shri Ram Narayan Laddha further submitted that the role of Shri Sanjay Shah was limited to clearing and transporting the imported goods. He has never abetted Shri Dipak Jayantibhai Thakor in the alleged offence. The statements of Shri Dipak Jayantibhai Thakor cannot be relied upon as he has changed his statements from time to time and these are inconsistent and contain major contradictions. Shri Dipak Thakor has stated in his statements recorded on 20.07.2017 and 21.07.2017 that the consignments were imported for Salim who was arranging the Customs clearance but in his subsequent statements recorded on 16.08.2017 and 30.08.2017, he named the appellant for the alleged offence without producing any documentary evidence. The averments of Shri Dipak ....
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....ir Prasad Vs. Commissioner of Cus. (Prev.), Ι.Ν.B., Patna (Tribunal)-2000 (126) E.L.T. 803 viii. Pradeep Kumar Vs. Commissioner of Customs, Lucknow 2000 (117) E.L.T. 383 (Tribunal) ix. Rajendra Prasad Vs. Commissioner of Customs, Patna - 2001 (136) E.L.T. 925 (Tri. Kolkata) x. Surinder Kumar Khanna Vs. Intelligence Officer, DRI - 2018 (362) E.L.T. 935 (S.C.) 5. Learned AR for the department reiterated the impugned order passed by the learned Commissioner and submitted that the Adjudicating Authority has rightly concluded that appellant Ram Narayan Laddha was actively involved in creating the firm in the name of M/s. Bhagyoday Enterprises for the purpose of financing the import. He controlled the business and banking transactions of M/s. Bhagyoday Enterprises alongwith his colleague Sanjay Shah. The Adjudicating Authority has rightly found that Ram Narayan Laddha has played a vital role in smuggling of 27 Gold Bars totally weighing 27 kilograms and 25.20 Lakh sticks of Gudang Garam brand cigarettes by using IEC of M/s. Bhagyoday Enterprises. The alleged acts and omissions on the part of the appellants have rendered the smuggled gold and cigarett....
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....Khatri, Advocate for Shri Ramnarayan S Laddha argued that the department's charges are without any corroborative evidence or any documentary proof; that Shri Ramnarayan S Laddha has later on, retracted his statement and therefore, it has no evidentiary value; that Shri Dipak Thakor, Proprietor of M/s. Bhagyoday Enterprises (main accused in the matter) whose statements have been relied on, for imposing penalty on Shri Laddha, has not challenged the impugned order. There is also inconsistency in his statements. It is settled law that statement of co-accused cannot be relied upon for penalizing. We find that vide order dated 26.02.2026 the Bench granted the appellant liberty to submit the retraction affidavits/ documents within two weeks to substantiate their claim but he failed to produce the said documents. In absence of any such documentary evidence, above contention of learned Advocate regarding retraction of statements by Shri Ramnarayan S. Laddha, is rejected. 6.2 Learned Advocate for Shri Ramnarayan S. Laddha has relied upon several decisions of the Tribunal as well as of Hon'ble Gujarat High Court as per para 3.1 above, to defend his client. We find that in the case of ....
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....a held that penalty can not be imposed without any corroborative evidence. 6.3 We also find that CESTAT Delhi, in an appeal filed by the department against Shri Jagdish Prashad Soni vide final Order No. A/626-630/2003-NB (SM), dated 26.05.2003 reported in 2003 (158) ELT 457 (Tri-Del.), held that there is no sufficient ground to disagree with the findings of fact recorded by the Commissioner that alleged confessional statement of Shri Satya Narain Soni, for having been remained uncorroborated from any other source, was insufficient to substantiate the charges against the respondents. No tangible evidence has been adduced by the Department to prove that Indian currency recovered from the car of Shri Satya Narain Soni, respondent, was the sale proceeds of the smuggled goods. The person from whom he allegedly purchased the gold and the person to whom he sold later on, both have not corroborated his version. No presumption, that the money recovered from his car was the sale proceeds of the smuggled gold, could be legally drawn for want of any evidence to prove this fact. In Lalit Jain case also, CESTAT Ahmedabad in para 5.2 of its Final Order No. A/10975/2022 dated 12.08.2022 observe....
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....gyoday Enterprises recorded on 20.07.2017, 16.08.2017, 30.08.2017 and on 26.10.2017. In all these statements, Shri Dipak Thakor has clearly stated that Shri Sanjay Shah, Director of M/s. Somnath Metals Pvt. Limited was looking after all the work of M/s. Bhagyoday Enterprises. The bank account of the firm maintained in Axis Bank was actually being operated by Shri Sanjay Shah and Shri Ramnarayan S Laddha using his firm's IEC, Shri Sanjay Shah and Shri Ramnarayan S Laddha, were importing HMS Scrap and giving him a sum in the range of Rs. 50-60 thousand per container. His firm also used to get financial support from M/s. Somnath Metals Pvt. Limited, (whose one of the Director was Shri Sanjay Shah) which is established from credit of Rs.19 Lakhs in his Axis Bank account and thereafter, a debit entry dated 12.05.2017 for Rs.18,68,181.37/- (corresponding to USD 24003.40. Likewise, received credit entry of Rs. 73.30 Lakhs in his Axis Bank account from M/s. HB Metals and then a debit entry on 01.06.2017 for Rs.24,05,893.02/- for payment of USD 37268.10 towards Bill of Entry No. 9636606 dated 10.05.2017; Shri Ramnarayan S Laddha arranged meetings with CHA Shri Kamlesh Sharma, and thus he al....
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.... regular touch for this work. He also confirmed that Shri Sanjay Shah looked after customs clearance of scrap imported by M/s. Bhagyoday Enterprises. Like Shri Kamlesh Sharma, he also informed Shri Sanjay Shah after knowing about recovery of gold concealed in HMS Scrap container, who asked him not to disclose his name in gold smuggling as the container cargo was of Shri Dipak Thakor proprietor of M/s Bhagyoday Enterprise Pvt Ltd. 6.9 Shri Mukesh Makwana, Branch Manager of M/s. ASR India Pvt Ltd, (who issued import delivery orders) in his statement dated 25.07.2017, confirmed that he got the work of M/s. Bhagyoday Enterprises through M/s. Harshit Logistics. That on 15.07.2017, his employee Shri Pradeep Rupani received a call from Mobile No. 9978985672 for shifting of container No. GATU 1260784 and TGHU 3084553 (from which 25.20 lakh cigarettes sticks were recovered) to Sea Bird CFS. On insistence for a written communication, they received an e-mail from Shri Sanjay Shah personified as Shri Dipak Thakor of M/s. Bhagyoday Enterprises. Likewise, Shri Laxman Rao Okala, Operation Manager of M/s. Shree Ramkrishna Freight Carrier also confirmed in his statement dated 26.07.2017 that he ....
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....oms clearance work, transportation of containers from CFS to Ahmedabad and coordination among various agencies involved in clearance of imported metal scrap fortifies above view. Shri Dipak Thakor was a front face of M/s. Bhagyoday Enterprises whereas all the affairs of this firm were looked after by Shri Sanjay Shah and Shri Ramnarayan S Laddha. The case laws relied upon by learned Counsel(s) are distinguishable as in this case, not one but all the persons involved in clearance of imported HMS Scrap, right from shipper, CHA, Transporters., their Operation Manager and the driver etc. have categorically confirmed that both Shri Sanjay Shah and Shri Ramnarayan S Laddha were controlling the affairs of M/s. Bhagyoday Enterprises. They were also controlling the bank account of M/s. Bhagyoday Enterprises with Axis Bank. Learned Commissioner in para 34 of the impugned order has discussed financial transactions between M/s Bhagyoday Enterprises, M/s Somnath Metals Pvt ltd (controlled by Shri Sanjay Shah), M/s H B Metals Pvt Ltd (looked after by Shri Ramnarayan S Laddha) and M/s Jay Engineers, Himmatnagar (also controlled by Shri Ramnarayan S Laddha). There is also an email from Shri Sanjay....
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....ner(s). 7.2 On admissibility or otherwise of retracted statements, we find that Hon'ble Madras High Court in the case of K Rahuman Sait vs. Commissioner of Customs, Trichy reported at 2021 (376) ELT 476 (Madras) has held that if the statements have been retracted beyond three months from confession, such retraction can be rejected based on other statements recorded during search and seizure operation. It further stresses that such retractions are not to be considered if statements were not obtained under threat, duress or promise. In para 25 of the said decision, it is held that admissibility of the statements recorded under Section 108 of the Customs Act, of the appellant was found to be admissible by the Tribunal and the belated retraction was rightly rejected by the Adjudicating Authority. 7.3 We also find that Hon'ble Apex Court in the case of Jethmal vs. UOI reported at 1999 (110) ELT 379 (SC), has held that statement recorded by investigating Customs officer are admissible in evidence. They were not recorded before a police officer, and at that stage, no criminal case had as yet been started against the persons concerned. The relevant para 8 of the said decision....