2022 (10) TMI 68 - AT - Customs

Levy of penalty under Section 114 of the Customs Act - smuggling - mobile phone (Samsung A3) - Foreign and Indian currency - used clothes - rusk (toast) - wafer (papad) packets - baggage rules - reliance based on statement of Shri Anil Jain - third party evidences - corroborative evidences or not - HELD THAT - The whole case of Revenue is based on the statement of Shri Anil Jain. It is further found that the statement of Shri Anil Jain is third party evidence, which is unsubstantiated. Further, Shri Anil Jain has not been examined in the adjudication proceedings, as required under Section 138 B of the Act and hence, the same is not reliable. There is absence of any other evidences to corroborate the statement of Anil Jain against this appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Imposition of penalty under Section 114 of the Customs Act

Analysis:
The case involved the imposition of a penalty under Section 114 of the Customs Act on the appellant. The appellant, Mr. Anil Jain, was intercepted by the Anti-Terrorist Squad officers at the International Airport, Jaipur, while he was going to Dubai. During a search, foreign and Indian currency along with other items were found in his possession. Mr. Jain stated that the currency was given to him by another individual for delivery in Dubai. Further investigation revealed discrepancies in the statements provided by the individuals involved. The Revenue alleged violations of the Foreign Exchange Management Act and Customs Act, leading to the issuance of a show cause notice proposing confiscation of currency and imposition of penalties. The Order-in-Original confirmed the confiscation and imposed penalties on the appellant and other individuals. Appeals were filed before the Commissioner (Appeals), who upheld the order. The appellant challenged the decision before the Tribunal.

The Tribunal considered the arguments presented by both parties. The appellant's counsel contended that the case against the appellant was solely based on the unsubstantiated statement of Mr. Anil Jain and highlighted the lack of examination or cross-examination of witnesses during adjudication. It was argued that relying on Mr. Jain's statement for imposing penalties was unjust. The Authorized Representative relied on the impugned order.

After evaluating the contentions, the Tribunal observed that the entire case of the Revenue rested on the statement of Mr. Anil Jain, which was considered third-party evidence and remained unsubstantiated. The failure to examine Mr. Jain during the adjudication process, as mandated by Section 138 B of the Customs Act, raised doubts about the reliability of his statement. The Tribunal found a lack of additional evidence to support Mr. Jain's statement against the appellant. Consequently, the Tribunal allowed the appeal, setting aside the impugned order concerning the appellant and granting consequential benefits.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing the insufficiency of evidence and procedural lapses in the adjudication process. The appeal was allowed, providing relief to the appellant regarding the penalty imposed under Section 114 of the Customs Act.