2019 (3) TMI 1448 - AT - Customs

Penalty - Smuggling of the prohibited goods out of India - Ketamine Hydrochloride - requirement of No Objection Certificate - Held that - N/N. 67/2007 mentions that no objection certificate is to be obtained for Ketamine. The notification does not say that No Objection Certificate is required for Ketamine Hydrochloride - The ld. counsel has also produced Notification dated 10.2.2011 in F. No. N/11012/4/2010-NC-II. In the said notification, Ketamine has been notified as psychotropic substance. The department has not been able to put forward that Ketamine Hydrochloride has been notified vide notification 67/2007. The appellant was arrested while he was standing near Mahalakshmi Tower Lodge at Kovilpatti by the DRI officers. The shipping bill was not filed by the appellant. The appellant is neither the owner nor the exporter of the goods also. There is no direct evidence that the appellant had handled or had rendered any positive act for the smuggling of goods out of India. The entire evidence for imposing penalty upon the appellant is based on statements. The penalty imposed cannot sustain - appeal allowed - decided in favor of appellant.

Issues involved:
1. Imposition of penalties under Sections 114 and 117 of the Customs Act, 1962 on various individuals and entities.
2. Allegations of smuggling Ketamine Hydrochloride concealed in export cargo.
3. Legal interpretation of Notification 67/2007 regarding the requirement of a No Objection Certificate for export of Ketamine and Ketamine Hydrochloride.
4. Admissibility of evidence and statements in the case.
5. Dispute over the identity and classification of Ketamine and Ketamine Hydrochloride.
6. Justification of penalties based on evidence and statements.

Analysis by Issue:

1. The judgment involved the imposition of penalties under Sections 114 and 117 of the Customs Act, 1962 on several individuals and entities based on allegations of smuggling Ketamine Hydrochloride. The penalties were confirmed in the impugned order dated 22.12.2010 by the adjudicating authority, leading to an appeal challenging the penalties.

2. The case revolved around the discovery of Ketamine Hydrochloride concealed in export cargo, leading to a show cause notice proposing confiscation and penalties. The appellant denied involvement, arguing that he was not connected to the goods and no evidence directly linked him to the smuggling activities.

3. The legal interpretation of Notification 67/2007 was crucial in determining the requirement of a No Objection Certificate for the export of Ketamine and Ketamine Hydrochloride. The appellant argued that the notification only applied to Ketamine, not Ketamine Hydrochloride, citing a decision of the jurisdictional High Court to support the distinction between the two substances.

4. The admissibility of evidence and statements played a significant role in the case. The department relied on statements from various witnesses to establish the attempted smuggling of Ketamine Hydrochloride. The appellant contested the reliance on hearsay evidence and lack of direct proof implicating him in the smuggling activities.

5. A key issue was the dispute over the identity and classification of Ketamine and Ketamine Hydrochloride. The appellant and the department presented contrasting arguments regarding the nature of the substances and whether the notification requirements applied to Ketamine Hydrochloride.

6. The justification of penalties hinged on the evidence presented and the statements recorded during the investigation. The department argued that the appellant's admission and involvement in the smuggling activities were evident from the statements and circumstances surrounding the case. However, the Tribunal found that the penalties imposed on the appellant lacked legal basis considering the interpretation of the notification and the lack of direct evidence linking him to the smuggling.

This detailed analysis encapsulates the legal complexities and arguments presented in the judgment, highlighting the key issues and their respective conclusions.

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