Committed Logistics Pvt. Ltd. Vs Commissioner of Customs (CESTAT Delhi)
CESTAT Delhi held that statement of witness recorded under section 108 of the Customs Act cannot be considered as relevant since procedure prescribed under section 138B of the Customs Act is not followed. Accordingly, penalty imposed u/s. 112(a) is set aside.
Facts- The company appeal has filed by M/s Committed Logistics Pvt. Ltd. to assail that portion of the order dated 31.03.2013 passed by the Commissioner ICD, TKD, New Delhi that imposes a penalty of Rs. 25 lakhs on the appellant under section 112(a)(i) of the Customs Act, 1962 on account of acts of omission and commission to the extent of providing delivery orders in respect of 26 containers to a person who was not the person to whom cargo was destined. It has been held that the appellant was the nominated delivery agent of M/s Glory Express Logistics Co. Ltd. of China which on inquiries was found to be non-existent.
Conclusion- Held that the provisions of section 138B(1)(b) of the Customs Act and section 9D of the Central Excise Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 108 of the Customs Act or under section 14D of the Central Excise Act. The Courts have also explained the rationale behind the precautions contained in the two sections. It has been observed that the statements recorded during inquiry/investigation by officers has every chance of being recorded under coercion or compulsion and it is in order to neutralize this possibility that statements of the witnesses have to be recorded before the adjudicating authority, after which such statements can be admitted in evidence. As seen from the show cause notice and the order impugned, penalty upon the appellants has been imposed only on the basis of the statement made by the appellants under section 108 of the Customs Act. A statement made under section 108 of the Customs Act cannot be considered as relevant as the procedure contemplated under section 138B of the Customs Act was not followed. Thus, the impugned order dated 31.03.2013 passed by the Commissioner insofar as it imposes penalty upon the appellant and Vikas Chaudhary under section 112(a)(ii) of the Customs Act cannot be sustained and is set aside and both the appeals are allowed.
