Colour Cottex Pvt. Ltd. Vs Commissioner of Customs (Export) (CESTAT Delhi)
CESTAT Delhi held that statement recorded under section 108 of the Customs Act cannot be considered as evidence under section 138B of the Customs Act. Accordingly, demand based on the statement recorded cannot be sustained. Thus, order set aside and appeal allowed.
Facts- M/s Colour Cottex Pvt. Ltd. has filed this appeal to assail the order dated 15.09.2021 passed by the Commissioner of Customs, ICD-Export, Tughlakabad confiscating the goods exported through 211 Shipping Bills u/s. 113 (d), (g) and (i) of the Customs Act, 1962 but as the goods were not physically available for confiscation nor cleared under a bond, redemption fine in lieu of the confiscation has not been imposed.
The Commissioner has also confirmed recovery of an amount equivalent to ineligible Focus Market Scrip u/s. 28AAA of the Customs Act with interest. Penalty has also been imposed upon the appellant u/s. 114(iii) and section 114AA of the Customs Act. The amount of drawback under rule 16 of the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 has been dropped.
Conclusion- Tribunal in the case of M/s. Surya Wires Pvt. Ltd. Vs. Principal Commissioner, CGST Raipur held that the provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs 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 14D of the Central Excise Act or under section 108 of the Customs 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.
