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TMI Blog2018 (9) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... about the examination of the said goods and the details of the branded goods. There is no record of the phone call made by Shri Deepak Kumar Rishi on record for 31.10.2011. The case record for the period 29.09.2011 to 10.10.2011 cannot be the basis to impute the appellant in illegal import - Merely on the basis that the appellant is a CHA whose license has been suspended in some other case cannot be the basis to implicate the appellant in the case in hand. In these circumstances, in the absence of any evidence against the appellant, no penalty can be imposed under Section 112 (a) and Section 114 (AA) of the Act. Penalty set aside - Appeal allowed - decided in favor of appellant. - Customs Appeal No. C/50474/2018 [DB] - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere were certain phone calls between the appellant and Shri Deepak Kumar Rishi, the main kingpin of the fraudulent import and Shri NK Singh an employee of the appellant. On the basis of investigation, it was alleged that the appellant was involved in illegal import by filing papers leading to misdeclaration and undervaluation. The matter was adjudicated on the basis of the statement and various phone call records found during the course of investigation, it was alleged that appellant was involved in illegal import, consequently, the penalties under Section 112 (a) and Section 114 (AA) of the Customs Act, 1962 was imposed to the tune of ₹ 3 Crs. Against the said Order, the appellant is before us. 2. The Ld. Counsel appearing on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submissions. On perusal of the record, we find that during the course of investigation, a statement of appellant was recorded which is extracted as follows: 17. Whereas statement of Sh. Bhupinder Singh was recorded under Section 108 of the Customs Act, 1962 (RUD-IX) wherein he has stated that he was the owner of the CHA firm M/s Continental Cargo Services having its office at Apartment No. 6161, C-6, Vasant Kunj, New Delhi; that this CHA license was not in use since last quarter of 2010 as the same has been temporarily suspended with reference to an enquiry conducted by customs in the case of M/s D.P. Enterprises; that there is no employee working with the CHA firm M/s Continental Cargo Services; that he has an another firm name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 405 29.09.2011 12:00:00 63 2. 01141015892 9899389405 29.09.2011 13:57:10 14 3. 01141015892 9899389405 29.09.2011 13:57:50 54 4. 01141015892 9899389405 29.09.2011 15:01:26 20 5. 01141015892 9899389405 29.09.2011 15:19:41 47 6. 9899389405 01141015892 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing about the examination of the said goods and the details of the branded goods. There is no record of the phone call made by Shri Deepak Kumar Rishi on record for 31.10.2011. Moreover, as per the Show Cause Notice, the examination was conducted on 02.11.2011 and 03.11.2011. From the examination report, it also reveals that the examination has also been conducted after the phone call made by Shri Deepak Kumar Rishi. Therefore, the case record for the period 29.09.2011 to 10.10.2011 cannot be the basis to impute the appellant in illegal import. The statement given by Shri Deepak Kumar Rishi against the appellant is not acceptable in the absence of positive evidence. From the records placed before us, nowhere it is coming out that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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