Page 268 - ELT_1st September 2020_Vol 373_Part 5

706 EXCISE LAW TIMES [ Vol. 373

Shahul Hameed, Mr. K. Francis and Mr. P. Karunanithi, was in-
volved in the act of smuggling of gold bars;
• The Revenue has relied on the statements of co-noticees/co-accused
namely, Mr. Francis and Mr. Karunanithi and the affidavit of Mr.
Mathiarasu and that the denial by Mr. R.S. Sridhar and Mr. R. Vi-
jayakumar has not at all been considered;
• The other evidences like the forensic analysis of mobile phones, etc.,
do not lead to any wrong doing by this appellant;
• The co-accused namely, Mr. Francis and Mr. Karunanithi have at
the first available opportunity, on being produced before the
Hon’ble Magistrate, clearly stated that their statements were ob-
tained under coercion;
• The statement of IEC holder i.e., Mr. Mathiarasu, does not implicate
this appellant and that by itself does not suggest any active role of
the appellant in abatement of illegal export;
• The call records only indicate the calls made/received, which by it-
self do not lead to any inference as to the appellant’s culpability;
• The Revenue has neither apprehended the so-called mastermind
i.e., Mr. Khaja nor have they taken any steps in this regard and nor
has the Revenue placed any evidence on record to suggest that the
Mobile Mumber 8056898851 was belonging to Mr. Khaja;
• The Letter issued by the service provider i.e., M/s. Airtel is only a
covering letter giving the list of calls made and is not a certificate is-
sued under Section 138C of the Customs Act, 1962 to be relied upon;
• In the Order-in-Original, the Adjudicating Authority has traversed
beyond the Show Cause Notice by relying upon additional docu-
ments which were not at all part of the Show Cause Notice;
• The so-called forensic analysis does not lead to any conclusion as to
the involvement of the appellant since the appellant’s mobile phone
was not at all subjected to the forensic analysis, etc.
3.2 Learned Advocate would conclude his submissions by contending
that the confiscated gold biscuits were lying in the cold storage of the Air Cargo
Complex and none of the employees of the appellant’s security agency were an-
ywhere near it; that one Mr. Karunanithi who, according to the DRI, was clandes-
tinely removing the gold biscuits, was not at all on duty on that particular day.
He relied on the following decisions :
(i) D.V. Kishore v. C.C. (Seaports-Imports), Chennai [2017 (350) E.L.T. 527
(Mad.)];
(ii) DRI v. Mahendra Kumar Singhal [2016 (333) E.L.T. 250 (Del.)];
(iii) Shafeek P.K. v. C.C., Cochin [2015 (325) E.L.T. 199 (Tri. - Bang.)];
(iv) Anil Gadodia v. C.C., Mundra [2016 (343) E.L.T. 983 (Tri. - Ahmd.)];
(v) S.M. Agrotech v. C.C., New Delhi [2018 (361) E.L.T. 761 (Tri. - Del.)]
4.1 Per contra, Learned Authorized Representative for the Revenue
while supporting the findings of the lower authorities, also vehemently contend-
ed that the Adjudicating Authority has placed on record the threadbare analysis
of the entire modus operandi and the involvement of the noticees/accused and

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