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TMI Blog1993 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order and, accordingly the penalty imposed is to be set aside as it was held in the case of Balbir Singh v. Collector of Customs, reported in 1991 (56) E.L.T. 64. He said that in the internal page 7 of the impugned order the Adjudicating Authority has observed that no evidence has been produced that the appellant was involved in smuggling gold into India. He argued that the penalty is unwarranted as the appellant was exonerated by the Collector as per his findings. Shri Sachar said that according to the allegations contained in the show cause notice gold was recovered from the residential premises of the appellant, whereas the Collector has given the finding that the gold was recovered from outside the house of the appellant. He contended that proceedings were concluded based upon the earlier statement given by the appellant but without taking into consideration of the retracted statement and referred to the decision of the Tribunal in the case of Assistant Collector of Central Excise v. Duncan Agro Industries Ltd., reported in 1992 (57) E.L.T. 545 (A.R). He submitted that according to the department the theft has taken place in the house of Kishan Lal but no theft h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the applicant in the show cause notice. 9. On the question of the correctness of imposition of penalty on Ramesh Chander, Shri Sachar, the learned Counsel had submitted that this could not be done without quoting the sub-section of Section 112 and had cited the decision of the Tribunal in Balbir Singh s case (supra) and of the Andhra Pradesh High Court in the Duncan Agro Industries case (supra) which is a case of criminal prosecution and not of adjudication. 10. Shri Ashok Mehta, the learned SDR, on the other hand, relied upon the two decisions in the case of Borivli Hosiery Mills (supra) and M. V. Chidambaram v. Collector of Customs, Madras - 1987 (29) E.L.T. 610D. He had contested the claim of Shri Sachar about the order not being sustainable for non-mention of sub-section of Section 112 and had submitted that the Tribunal had held in the Borivli Hosiery case that such non-mention did not vitiate the proceedings when the order of adjudication as well the show cause notice gave sufficient material and evidence on the basis of which the proposed penal action is taken by adjudicating authority. In the second case, the Tribunal had held that the non-mention of the sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case; the penalty amount of Rs. 25,000/-required to be deposited is dispensed with as it was held by the Member (Judicial) or proposing an order rejecting the stay application as per Member (Technical) . 16. Accordingly the matter was heard. 17. The learned Advocate stated that Hon ble Member (Judicial) has dispensed with the penalty amount, whereas Hon ble Member (Technical) has rejected the application for stay and the matter has been referred for determining whether in the facts and circumstances of the case the pre-deposit was required to be dispensed with or the stay application was required to be rejected. 18. It was his submission that as per show cause notice smuggled gold was recovered from the residence of the appellant. However, in the Order-in-Original the Collector has mentioned inter alia, that I, therefore come to the finding that the 16 gold biscuits of foreign origin were recovered outside the house of Shri Ramesh Chander at his instance and further that I however observe that no evidence had been produced that Shri Ramesh Chander or Shri Kimat Lal himself smuggled the gold into India . 19. It was his contention that thus it would be seen that the only c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the stay application should have been allowed. 25. The ld. D.R. stated that Hon ble Member (Technical) has not given any verdict or passed any judgment on the merits of the case and nowhere he has tried to circumvent or ignore the Larger Bench decision. He has only taken note of the submissions of the ld. D.R. and the case law cited by him and in view thereof has held that the matter was at best arguable in so far as the implication of mentioning or non-mentioning of sub-clause of Section 112 were concerned. Hence he has concluded that the appellant had not succeeded in showing a prima facie case. 26. It is also his submission that there was no error apparent in the order of the Member (Technical) in mentioning that the gold was recovered from the residence of the appellant as actually as per the show cause notice as well as the statements it was recovered from the compound of the appellant s residence; Collector s observation to the contrary notwithstanding. 27. In the circumstances he opposed the prayer. 28. I have considered the submissions of both sides. I observe that in the case of non-mention of sub-section or either clauses (a) or (b) of Section 112 what is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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