Customs, Excise and Gold Tribunal - Delhi
Jagannath Premnath vs Commissioner Of Customs on 3 October, 2005
ORDER M.V. Ravindran, Member (J)
1. These appeals are directed against the order in original dated 11-2-2004 imposing penalty on the partnership firm and the partner of the firm under Section 114 of the Customs Act, 1962.
2. The relevant facts for the purpose of imposition of the penalty are that the officers of the Marine & Preventive wing intercepted and detained a container which as per documents contained Turmeric powder for export. On further detailed examination it was found that the goods may not be the same as declared in the documents, a representative sample was drawn and sent to Dy. Chief Chemist, Mumbai for analysis. The analysis report of the Dy. Chief Chemist opined that the product in question was an aromatic powder containing sandalwood powder to the extent of 84.3% by weight. The export of these kind of powders are restricted to licence holders only. Further statements were recorded and show cause notice was issued to many persons including the current appellants. The adjudicating authority in his order-in-original has come to conclusion that the appellants in these appeals have by commission and omission on their part rendered the goods liable for confiscation under Section 113 of the Customs Act and hence imposed penalty on these appellants under Section 114 of the Customs Act. 1962.
3. The learned Advocate submits that, the adjudicating authority has not dealt with the issue judiciously and has imposed penalty on the appellants on presumptions and assumptions. He submits that the appellants had sold "Agarbatti powder" to the main noticee. This Agarbatti powder was purchased by the appellants from a manufacturer whose invoices were produced as an evidence by them before adjudicating authority. The learned Advocate further submits that the adjudicating authority has not adduced any evidence to implicate the appellants in the act of omission and commission. He submits that the appellants are holders of the licence to export these kind of goods, there is no reason for them to indulge in these kind of activities. He also submits that the adjudicating authority has relied upon the statement of the co-accused to impose penalty on the appellants without considering the evidence led by the appellants. He submits that this is contrary to the settled law and relies upon the order of this Hon'ble Tribunal in the case of Sri Pradeep Sah v. C.C., Patna 2005 TIOL 906 (CESTAT - KOL).
4. The learned D.R. on the other hand submits that the statement recorded under Section 108 of the Customs Act, 1962 of the main noticee, very clearly brings out the details of the transaction entered between the main noticee and the appellants and there was a clearcut nexus between them. He also submit that in order to utilize the licence issued to the appellants in future and to circumvent the quantitative restrictions imposed under the licence, the appellants have undertaken this kind of Modus operandi. He submits that a statement under Section 108 of the Customs Act, is in itself a good evidentiary value and need not be further corroborated.
5. Considered the submissions made by both sides and perused the records. I find that the appellants are having a licence, granted by the Controller of Imports & Exports, to export the restricted items:
Sandalwood Hearthwood dips not exceeding 50 gms/mixed chips (not exceeding 30 gms)/Flakes (not exceeding 20 gms)/powder (saw dust) of the classes as specified in the P.N. No. 46 (RE-2001) 1997-2002, dated 5-11-2001.
I also find from the records that the appellants have been exporting the sandal-wood powder under this licence for many years. This has been clearly brought out in the statement of Shri Sameer Garg the partner of the appellant firm and also one of the appellants. I also find from his statement (recorded under Section 108 of Customs Act, 1962) that he has denied totally any linkage to the goods sought to be exported and has also provided information regarding the dealings of sale of 'Agarbatti powder' with the main noticee. I also find from the statement that Mr. Sameer Garg has produced the documentary evidences of purchases of the agarbatti powder from one M/s. Cleenex Products (India). He has produced the delivery challans, invoices, etc. of the said M/s. Cleenex Products. Further, I also find from records that M/s. Cleenex Products have also issued a certificate regarding the sale and authenticity of the challan and invoices. These documents were produced by the appellants before adjudicating authority. I also find that the revenue authorities have recorded statement of the proprietor of the said M/s. Cleenex Products, who has in his statement categorically stated that he has sold agarbatti powder to the appellants and the invoices produced by the appellants are true. I am surprised to note that the adjudicating authority has not at all considered these overwhelming evidences produced and on record before him, while arriving at a conclusion to impose penalty on the appellants. I also find that the adjudicating authority has only relied upon the statement of the co-accused implicating the appellants, and has not brought on record any other corroborative evidence. If reliance has to be placed only on the statement recorded under Section 108 of Customs Act, 1962,then the statement of the appellants and the supplier of the 'agarbatti powder' has also to be relied upon. It is also to be noted that imposition of the penalty on the appellants only relying upon the statement of the co-accused is not desirable. It is also further to be noticed that the co-accused has himself accepted to the facts that he had forged the documents, and vainly tried to implicate the appellants. Reliance on such an un-corroborative testimony to impose penalty will be mis-carriage of justice and will deal a deadly blow to the judicial system. In the present case there is no corroboration of evidence and the imposition of penalty on the basis of statement of coaccused is not correct and the appeals deserve to be allowed. In view of the above, I set aside the impugned order to the extent it is applicable to the current appellants and allow the appeal with consequential relief to the appellants.