The Ahmedabad Bench of the Customs, Excise & Service Tax Appellate Tribunal has held that the charge of forgery on textile reports is not sustainable in the absence of cogent evidence.
The appellants engaged in the business of importing 100% polyester bed covers, polyester quilt covers and polyester blankets. The appellants had filed bills of entry declaring the goods as 100% Polyester Bed Cover under CTH 63041930. Test Report of Textile Committee opined stating that the sample was classified as “made up” in Correct description & Classification of the sample as declared by the Appellant in bills of entry whereas, a copy of Test Report obtained by an officer of SIIB, Custom House, Mundra in person revealed a different remark as “could not be ascertained”. The Committee confirmed that the report obtained by the SIIB officer was the genuine report and the report submitted by Custom Broker was the fake report.
Show Cause Notices were issued to the Appellants relying upon the Textile Committee Reports and confirmed the custom duties and penalty on the importers. Further personal penalties were imposed on authorised persons of the importer and CHA and other person involved under Section 28(4), Section 24AA, Section 112(a), Section 114A, Section 114AA of Customs Act, 1962.
The appellant contended that the department has not discharged the burden of proof of classifying the impugned goods under chapter 54 and the basis of imposing penalty is only either retracted statements of Bajrang Sharma & Amit Momamya or statement of Mahesh Bhanushali of which the Appellants never got the chance of cross-examination even after requesting repeatedly.
The Tribunal Observed that the charge of forgery should be proved by clear and cogent evidence which seems to be missing as two of the persons had retracted their statement and the statement of Mahesh Bhansuhali is the one left for which both the appellants have asked for the cross-examination which was denied by the lower authorities. which in our view should have been given since other confessional statements were retracted.
Member (judicial), Mr Ramesh Nair member (technical), and Mr Raju while allowing a bunch of appeals set aside the impugned orders being not sustainable. Shri Jatin Mahajan appeared for the appellant and Shri G. Kirupanandan appeared for the respondent.
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