Shri Sanjiv Rana vs C.C.(Preventive), New Delhi
- CitationAppeal No.C/600/2009-CU[SM]
Ratio decidendi
The rule this decision rests on
A penalty under Section 114 of the Customs Act, 1962 cannot rest on the statements of co-accused persons where those persons were not cross-examined; such statements, standing alone, are not a sufficient basis for penalty. Where a person's own statement recorded under Section 108 of the Customs Act, 1962 admits the relevant conduct and is never retracted, that statement is admissible evidence, and it may support the imposition of penalty under Section 114 of the Customs Act, 1962 even if the statements of co-accused are excluded from consideration. Corroboration of an admissible confessional statement by the consistent statements of co-accused strengthens its evidentiary value, and the existence of such consistency is sufficient to sustain penalty under Section 114 where the nature of the mis-declaration and of the goods is taken into account.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes
Appeal No.C/600/2009-CU[SM]
[Arising out of Order-in-Original No.11/COMMR./HKT/2009, dated 30.06.2009 passed by the C.C.(Preventive), New Delhi]
Shri Sanjiv Rana Appellant
Vs.
C.C.(Preventive), New Delhi Respondent
Appearance
Shri Prem Ranjan, Advocate - for the appellant
Shri Devender Singh, DR - for the respondent
CORAM: Honble Mr. R.K. Singh, Member (Technical)
Final Order No.52155-52156, dated 10.07.2015
Per Mr. R.K. Singh:
The appeal has been filed against Order-in-Original No.11/COMMR./HKT/2009, dated 30.06.2009 in terms of which, inter alia penalty was imposed upon the appellant under Section 114 of the Customs Act, 1962 read with Section 4 of the Antiquities & Art Treasure Act, 1972 in the case of export of 12 terracotta panels mis-declared as gear cutting machine parts. The consignment was booked in the name of M/s. ICI India Ltd. The consignment was brought to the IGI airport air cargo complex from the godown situated at Mahilpar Extension, New Delhi taken on rent by Smt. Rama Jain and managed by Shri Rajeev Gupta, Mayur Vihar Phase-I, New Delhi for storing antiques. The appellant abetted to attempted to export the said goods. In his statement dated 05.09.2003, the appellant admitted that he agreed to provide IE code of ICI Ltd. for exporting the consignments and fabricated the documents like invoices and shipping bills to get the consignment cleared from customs at the instructions of Shri. Nand Ram and Shri Rajeev Gupta. For such acts of the appellants, the adjudicating authority imposed penalty of Rs.1 lakh under Section 114 of the Customs Act, 1962 on him against which the appellant is in appeal.
2. The appellant has contended that he has been penalised on the basis of the statements of co-accused, which is not permitted. He had nothing to do with the entire activities of procuring and attempting to export the impugned goods. He had been booking the cargo through East West Freight Carrier Pvt. Ltd. on commission basis and had no knowledge about the illicit consignment. Shri Nand Ram has taken certain documents belonging to ICI India Pvt. Ltd. from his diary and has no knowledge with regard to his ill-motives.
3. Ld. Departmental Representative, on the other hand stated that by his own admission, the appellant has forged the documents and forged the signatures thereon on the instructions of Shri Nand Ram and Shri Rajeev Gupta. Shri Nand Ram has corroborated this fact and the appellant has never retracted the statement and the statements of Shri Nand Ram and Shri Rajeev Gupta are corroborative.
4. I have considered the contentions of both sides. There is force in the contention of the appellant that he cannot be penalised on the basis of the statements of the co-accused particularly in the absence of cross-examination. However, I find that he himself gave statement under Section 108 ibid that he agreed to use of IE code of M/s. ICI India Pvt. Ltd. and affixed the signatures on the documents to get the consignment cleared. This statement was never retracted and is an admissible evidence. Indeed, the statement of the appellant which was never retracted is in complete harmony with the statements of Mr. Rajeev Gupta and Shri Nand Ram. Thus, even if the statements of both these persons are not relied upon, the very fact that they are in harmony with the statement of the appellant, further enhances the evidentiary value of the appellants statement to a degree sufficient for the purpose of imposition of penalty under Section 114 ibid. In the light of the foregoing and having regard to the nature of mis-declaration and nature of the impugned goods, I am of the view that the appellant is liable to penalty under Section 114 of the Customs Act. Also the penalty imposed by the adjudicating authority is neither excessive nor arbitrary or perverse. Therefore, I see no reasonable ground to set aside the impugned order and therefore, the appeal is dismissed.
(Pronounced in the Open Court on 10.07.2015)
(R.K. Singh)
Member (Technical)
SSK
-4-
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