TaxTMI 
TaxTMI 
2026 (9) TMI 2016
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....ow. ii. On 15.08.2021 two persons namely Naushad Ahmad and Mohseen arrived from Flight No. SV3000 when the Appellant along with other sepoy/havildar, Inspectors, Superintendents was on duty in the arrival hall of Customs. They were cleared with their baggage after screening. Naushad Ahmad along with some other persons proceeded towards Noida through Lucknow-Agra Expressway on Kia Seltos Car bearing Registration No. UK17N5550. Similarly, Mohseen along with some other persons also proceeded towards Noida on Toyata Fortuner Car bearing Registration No. UP-12X-9393. Both the vehicles were intercepted by the teams of DRI, Lucknow and Noida near Fatehabad Toll Booth on Lucknow - Agra Expressway. 40 gold bars weighing 4663.540 grams valued Rs. 2,31,31,158/- and Indian currency of Rs. 1,43,000/- were recovered from Mohseen and his fellow passengers. 37 gold bars weighing 4314.200 gms valued at Rs. 2,01,97,358.72/- and Indian Currency Rs. 2,10,000/- were recovered from Naushad Ahmad and his fellow passengers. Seizure and other formalities against Mohseen and his fellow passengers were completed by DRI, Lucknow whereas DRI Noida unit completed formalities against Naushad Ahmad and h....
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....61;ा गया है।" vi. On 06.10.2021 & 27.10.2021 statements of the Appellant was recorded before Shri Ajay Kumar Mishra, the then Joint Commissioner, Customs (Prev) Commissionerate, Lucknow in compliance his letters C. No. 02/JC(Prev)/ Customs/2021 dated 06.10.2021 and 26.10.2021. vii. On 08.10.2021 Show Cause Notice [SCN] in case of Mohseen was issued under F. No. DRI/LKU/GI-26/Enq-14(INT-0)/2021/ by the Joint Director DRI, LZU, Lucknow but Appellant was not made a noticee. SCN in case of Naushad Ahmad was also issued under F. No. DRI/NRU/GI-26/INT-0/ENQ67/2021 dated 08.10.2021 by ADG, DRI, Lucknow but Appellant was not made a noticee. viii. On 14.02.2022 supplementary SCN under F. No. DRI/LZU/GI-26/Enq-14(INT-0)/2021/285 was issued in Mohseen case against the Appellant by DRI proposing imposition of penalty under Section 112(a) and/or 112(b) of the Customs Act, 1962. ix. On 19.05.2022 Supplementary SCN under F. No. DRI/NRU/GI-26/INT-0/ENQ-67/2021 was issued in Naushad Ahmad case also against the Appellant by DRI proposing imposition of penalty under Section 112(a) and/or 112(b) of the Customs Act, 1962. x. ....
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.... Being aggrieved with the impugned Order-In-Appeal Appellant is before this Tribunal. 3. The learned Advocate appearing on behalf of the Appellant submits that the learned adjudicating authority being in-charge of Customs unit posted at Amausi Airport had recorded Appellant's statement on 08.10.2021 and 27.10.2021. During adjudication, the Appellant demanded copy of those statements but it was refused by Ld. adjudicating authority. Hence, principles of natural justice have been violated by the department. 4. He further submits that the Cross examination of Shri Vimal Kumar Srivastava, Superintendent and Shri Mohd. Javed, Noticee, was requested by the Appellant vide Interim Defence Reply dated 20.09.2022 but it was not permitted. Hence, the statement of Mohd. Javed has no evidentiary value and cannot be used against the Appellant in terms of Section 138B of Customs Act, 1962. Further, Revenue has heavily relied on Appellant's statement dated 06.09.2021 recorded under Section 108. Neither the Appellant nor Mohd. Javed was examined by the Ld. adjudicating authority during adjudication in terms of Section 138B of Customs Act, 1962. Request for cross examination of Mohd. Javed ....
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....stody and arrest. Malafide intention of the investigating officer is clear from the fact that it has not been disclosed in the SCN that the Appellant was apprehended from his house in VillageChausa Baharia, Post-Rahwai, Kunda, Pratapgarh, U.P.230002 on 06.09.2021 by DRI officers S/Shri Shishir Sinha, S.I.O. and Imran Khan, I.O. (b) The Appellant has retracted from the said statement on the first opportunity before the Chief Judicial Magistrate and the District & Sessions Court, Lucknow in his bail application and submitted that the same was recorded under duress and threat while the Appellant was under DRI custody. 5. Learned Authorized Representative appearing on behalf of the Revenue justified the impugned order and prayed that the appeal filed by the Appellant being devoid of any merits may be dismissed. 6. Heard both the sides and perused the appeal records. 7. In light of the submissions made from both the sides, I have considered the case and find that the Appellant is a Havildar in Customs and Central Excise Department, presently posted at the Office of Commissioner (Appeals) Customs, CGST & Central Excise, Lucknow. On the date of incident i.e. 05.08.2021, ....
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....ly applicable in Appellant's case. 12. Allegation of inaction/omission by Appellant on DFMD light turned red when Mohseen crossed is not tenable because DFMD machine was faulty and not working properly on 15.08.2021. It is evident from the fact that it turned red more than 20 times between 16.52 PM to 17.14 PM. In Naushad Ahmad's case, the learned Commissioner Appeals has also held that DFMD machine was faulty on that day. Further, omission, inaction and negligence in duty cannot be a proof of abetment in smuggling. Relevant para of the order is reproduced below for ready reference:- "5.3.2 It has been alleged that the DFMD machine turned red while passing of Sh. Naushad Ahmed but the appellant ignored the same. In this connection, I observe that DFMD turned red more than 20 times between 16.52 Hrs to 17.14 Hrs on 15.08.2021 as mentioned in show cause notice at S.No. 12. It means the machine turned red more than 20 times in 20 minutes. In such a situation senior officers should have intervened in the matter but it appears that the same was not done herein. I therefore, find gravity in the submission of appellant that DFMD was faulty. Moreover, the appellant, a Havaldar ....
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.... imposed on the Appellant under Section 112(b) ibid. The Ld. Commissioner (Appeals) in that case concluded as "Also, there appears no such office order entrusting the act of frisking of passengers through hand held metal detector or any other mode by a Havaldar/Sepoy." He further held - "Moreover, it is beyond imagination that such a more responsible work (frisking of persons or checking through DFMD machine) could be entrusted upon such a junior employee like Havaldar." 14. Naushad Ahmad (DRI Noida Case) and Mohseen (DRI Lucknow case - impugned) both arrived from Flight No. SV3000 on 15.08.2021 when the Appellant was on duty in the arrival hall of Customs. Same duty was performed in regard to both the passengers. Same allegation of not checking the passengers at DFMD was levelled when DFMD machine's light turned red. In case of Naushad Ahmad the Ld. Commissioner (Appeals) held (Annexure No. 15) as --"There appears no evidence which could lead to a conclusion towards his involvement in the matter or he had knowledge about the instant illicit act of Shri Naushad. Since Appellant no. 5 (Appellant in this case) was neither concerned in carrying, removing, depositing, harbouring, ke....
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.... when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court." 18. It would be seen that Section 108 of the Customs Act enables the concerned Officers to summon any person whose attendance they consider necessary to give evidence in any inquiry which such Officers are making. The statements of the persons so summoned are then recorded under this provision. It is these statements which are referred to in Section 138B of the Customs Act. A bare perusal of Sub-Section (1) of Section 138B 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 ....
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....duce, for ready reference, Section 138B of the Act, thus:***** A Division Bench of this Court has, speaking through A.K. Sikri, J. (as he then was) held, in J & K Cigarettes Ltd. v. Collector of Central Excise [2009 (242) E.L.T. 189 (Del.)] that, by virtue of sub-section (2), Section 138B(1) of the Act would apply, with as much force, to adjudication proceedings, as to criminal proceedings. ***** We express our respectful concurrence with the above elucidation of the law which, in our view, directly flows from Section 138B(1) of the Act - or, for that matter, Section 9D of the Central Excise Act, 1944. 77. The framers of the law having, thus, subjected statements, recorded under Section 108 of the Act, to such a searching and detailed procedure, before they are treated as relevant in adjudication proceedings, we are of the firm view that such statements, which are yet to suffer such processual filtering, cannot be used, straightaway, to oppose a request for provisional release of seized goods. The reliance, in the appeal before us, on various statements recorded during the course of investigation in the present case cannot, therefore, in our view....