Case Law Details
Sunil Garg Vs C.C. (CESTAT Ahmedabad)
Appeal is filed against penalty imposed by the Adjudicating Authority under section 112(a) and 114AA of the Customs Act, 1962.
Learned counsel appearing on behalf of the appellant submits that there is contradiction in the statement of the appellant as well as the third party. Therefore, these statements cannot be solely relied upon for the imposition of penalty. She submits that except the contradictory statements there is no independent evidence against the appellant.
CESTAT held that in view of the fact that statements are contradictory the witnesses must have been examined/ cross-examined to bring the truth on record to do the justice for imposition of penalty. Therefore CESTAT held that one opportunity can be given to re-consider the whole case of the appellant and after allowing the cross- examination a fresh order needs to be passed.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal is directed against the order of the commissioner (appeals) whereby the Learned Commissioner (Appeals) upheld the penalty imposed by the Adjudicating Authority under section 112 (a) and 114 AA of the Customs Act, 1962. The penalty was imposed in connection with an offence case booked against M/s Rasna Corporation on the charge of mis-declaration of the goods in as much as the imported goods declared is ‘coco husk’ whereas on examination it was found the same as mixture of coco husk and coco powder. For imposing penalty the heavy reliance is made on the statements of the appellant as well as on the third party statement of Shri Shekhar Nuruddin Rashid. Against the imposition of penalty the appeal was filed by the appellant before the Commissioner (Appeals) who also upheld the penalty and rejected the appeal. Therefore, the present appeal.
2. Ms. Reena Rawat, Learned counsel appearing on behalf of the appellant submits that there is contradiction in the statement of the appellant as well as the third party . Therefore, these statements cannot be solely relied upon for the imposition of penalty. She submits that except the contradictory statements there is no independent evidence against the appellant. Therefore, the penalty was wrongly imposed. She placed reliance on the following judgments:
- Sri Krishna Sounds and Lightings – 2019 (370) ELT 594 (Tri. Chennai)
- Access World Wide Cargo – 2022 (379) ELT 120 (Tri. Bang)
- Bosch Chassis Esystems India Ltd – 2015 (325) ELT 372 (Tri. Del.)
- Jaswinder Singh – 1996 (83) ELT 175 (Tribunal)
- Pradeep Sah – 2006 (197) ELT 301 (Tri.- Kolkata)
- Mehmood Khan – 2002 (140) ELT 97 (Tri. Kolkata)
3. Shri Vijay G. Iyengar, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
4. I have carefully considered the submission made by both sides and perused the records. I find that both the lower authorities have heavily placed reliance on the statement of the appellant and the statement of Shri Shekhar Nuruddin Rashid. The relevant part of the said statement is reproduced below:
Relevant part from the Statement of Shekhar Nuruddin Rashid I state that I am not aware of actual goods and as to how the goods were purchased. These goods were purchased by Shri Sunil Garg (M: 9711135351). He asked me to clear his consignment in my name. For this he promised to give me 5% of value of the goods. On being asked about value of the goods, I state that on whatever value customs clears the goods. I was to get 5% of the Customs cleared value of the goods. I request to give another date of statement. On being asked about Mr. Sunil 1 state that I am not aware about his address. I contact him by phone only. He lives in Delhi, I will appear on the next date at given time.” Relevant Part from the Statement of Shri Sunil Garg
“Q. What is your role in import of consignment covered under B/E No. 2225641 dated 24.06.2017 Bill of Entry by M/s Rasna Corporation, Navi Mumbai ?
Ans. I contacted Shri Shekhar Rashid of Mumbai. His reference, I got from Cocoa Market. I offered him this consignment of low quality Cocoa powder and cocoa paste from M/s Vinco Vanco Palm Oil Sdn Bhd. The suppliers treat this material as waste type product. I was hesitant to import this item in the name of my company therefore I offered this to Shri Shekhar Rashid. I was to get 5% of price of consignment which Rashid would have earned.”
From the above statement it is admitted fact that both the statements are contradictory. In this position, in my view the witnesses must have been examined/ cross-examined to bring the truth on record to do the justice for imposition of penalty. I am therefore of the view that one opportunity can be given to re-consider the whole case of the appellant and after allowing the cross- examination a fresh order needs to be passed.
5. Accordingly, I set aside the impugned order to the extent of imposition of penalty on the appellant. Appeal is allowed by way of remand to the adjudicating authority.
(Pronounced in the open court on 07.03.2023 )
