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TMI Blog1994 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... e person who signed the B/E. 3. Learned S.D.R. reiterated the order in original. 4. Considered. The appellant has claimed that he has been falsely implicated. As against this, there is the statement of Sh. Dhingra against him. He has claimed that he had offered to be confronted by Sh. Dhingra to determine whether he was the same Jagmohan Singh who had signed the B/E. It is seen from the order in original that though a number of summons were issued to him for the above purpose, he failed to appear before the AC. 5. From this only an adverse conclusion has to be drawn that he was the same Jagmohan Singh who was named by Sh. Dhingra. On the basis of preponderance of probability the charge against him has been rightly held as proved and the penalty imposed upon him is confirmed. 6. The appeal is without merits and is rejected. Sd/- (S.D. Mohile) Dated 17-9-1993 Member (T) 7. [Order per : S.L. Peeran, Member (J)]. - I have gone through the order drafted by my learned brother but I could not persuade myself to agree with the same, hence, I am recording my separate order. 8. In this appeal, the appellant is aggrieved with the imposition of personal penalty of Rs. 35,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced to M/s Deep Trading Co. through his friend. Shri Subhash Dhingra has further stated that he does not know Shri Jagmohan Singh who was in a position to identify him. Therefore, the applicant Sh. Jagmohan Singh Sawhney was summoned to the office and his statement was recorded. Shri Jagmohan Singh Sawhney in his statement recorded on 28-1-1987 denied having any connection with the said firm M/s Deep Trading Co., has totally denied his connection with the firm or having dealt with any business with the said firm. He has also denied having filed the said Bills of Entry and also denied the signature on the Bill of Entry as well as on the letter-head of M/s Deep Trading Co. He stated that Shri Jagmohan Singh Sawhney said to be the proprietor of the firm may be a different person. Therefore, the Customs Authority issued further summons to Sh. Jagmohan Sawhney who did not turn up to give any statement to the Customs Office prior to confiscation. Therefore, the goods were seized (and confiscated) on 17-10-1986 under Section 110 of the Customs Act. On all these facts the said show cause notice was issued to Shri Jagmohan Singh Sawhney. The Customs Authorities have relied mainly on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked by a handwriting expert. Nor the department had independently brought forth any evidence to link appellant with M/s Deepak Trading Co. He pointed out that the department ought to have charge sheeted the employee Sh. Subhash Dhingra and Col. M.L. Sharma (Retired), who were the actual guilty persons to have presented the Bill of Entry and by not so doing, the department had failed to prove their case. Shri K.N. Gupta, ld. SDR agreed that there were infirmities in the findings recorded by the learned authority but however, he reiterated the findings. He also pointed out that the goods were not banned one but only prohibited goods. 11. I have carefully considered the pleadings of both sides. The department has not proved the charges. It is well settled and established principle of jurisprudence that a mere statement of a co-accused cannot be used against any accused, unless it is corroborated by unflinching evidence. Further, it is well settled that suspicion, however, grave it might be, it cannot take the place of proof. It is equally well settled that even in a case of circumstantial evidence, each circumstance should point to the guilt of the accused and each circumstance sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nned items but only prohibited items. To impose penalty, mens rea has to be proved as held in Merch Spares Delhi v. Collector of Central Excise, New Delhi 1983 (13) E.L.T. 1261 in paras 5 to 8. The said paras are noted herein below: It is axiomatic that the proceedings relating to the levy of penalty are criminal and penal in character. It is also a fundamental principle of criminal jurisprudence that the requisite mens rea has to be proved before the appellant could have been visited with a penalty. A perusal of the orders of the Adjudication Officer as well as the Appellate Collector would reveal that they had altogether failed to reveal that the requisite mens rea had been established. In the course of the arguments before us as well, the learned representative for the Revenue had not been able to establish any whatsoever. Admittedly, the appellant had produced the relevant bills, if not at the time of the search, immediately thereafter. The Bills fully accounted for the entire lot. Even so, the Appellant, as per the statement of the Counsel, is not interested in the release of the goods covered by the first Bill from confiscation. The second Bill relates to 19 set of Mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has not proved its case and the imposition of Rs.35,000/- as penalty is not justified and appeal to be allowed as held by ld. Member (J)." 13. When the case was called, Shri Naveen Mullick, the ld. Advocate appeared for the appellant and more or less repeated arguments and pleas as made before the Bench and quoted extensively by the ld. Member (J). The ld. Counsel emphasised that there was no evidence whatsoever on record except the evidence of Sh. Subhash Dhingra which was not corroborated by any other evidence and that the appellant was never confronted with Sh. Subhash Dhingra to prove the point that Sh. Jagmohan Singh Sawhney was the person who had signed the Bill of Entry and who had presented himself as a Proprietor of M/s Deep Trading Co. 14. Shri V.C. Bhartiya, the ld. JDR appeared for the respondent and reiterated the submissions made before the Bench earlier. 15. Heard the submissions of both sides and considered the judgments proposed by the two Ld. Members. The short point to be examined was whether there was evidence adequate enough to justify the penalty of Rs. 35,000/- on the appellant. I find that the only evidence on record implicating the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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