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TMI Blog2004 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... se Agent and the appellant was admittedly looking after the affairs of his brother s business concern viz. M/s. Farport International. A case was booked against the CHA and others including the appellant on the basis of results of investigation into clearances of certain imports made by various parties. Investigative results led the Department to two findings :- (i) The imported goods (chemicals) were cleared without actual payment of duty, the duty payment endorsement on the relevant Bills of Entry for Home Consumption having been found to be fake; and (ii) The goods cleared under Bills of Entry for warehousing were actually diverted without being warehoused and lime stone powder procured from the market was substituted for the chemicals f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be dealt with. According to the ld. Counsel, it cannot be conclusively inferred from any of the said statements that the goods, whether chemicals or lime stone powder, had been transported or used under the appellant s instructions. In the absence of evidence of the appellant having physically dealt in any manner, with any of the goods confiscated by the Commissioner, it was not correct to impose any penalty on him under Section 112(b) of the Customs Act. 4. Ld. DR, on the other hand, submits that the appellant s association with the affairs of the CHA s business is clear from the statements of Shri S. Saraboji (Driver of Shri D. Ramesh), Shri S. Mohammed Iqbal (Driver of Shri D. Ramesh) and Shri P. Ramesh (Clearing Clerk of Shri D. Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly held liable to confiscation, and we proceeded to examine the legality of the penalty imposed on the appellant. Ultimately, we vacated the penalty after finding that the appellant had not physically dealt with the goods. The ratio of our decision is contained in the following extract from the above Final Order : ......... However, whether the above penalty was liable to be imposed on the appellant would depend on whether his conduct satisfied the requirement of Clause (b) of Section 112 of the Act. This clause reads as under :- (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or any other manner dealing with any goods which he k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith should be understood in a sense similar or comparable to how the preceding words viz. carrying, removing, depositing etc. are understood. In other words, any other manner of dealing with the goods is also some physical manner of dealing with the goods. In the impugned order, there is no finding that the appellant physically dealt with the goods in question, nor was any allegation to this effect raised against him in the relevant show cause notice. Therefore, the provisions of Section 112(b) were not applicable to the case. It would follow that the penalty imposed on the appellant is not sustainable on facts or in law. 7. Following the above view, we set aside the impugned penalties and allow these appeals with consequential relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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