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TMI Blog2018 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962; Subsection of (b) of Section 112 envisages certain act concerning the goods, therefore, it has to be understood that both the provisions are in a different spheres of operation. The learned Commissioner has erred in putting both the subsections together while imposing penalty. It was incumbent on the part of the adjudicating authority to clearly satisfy the offence of each of the persons involved and then to apply the penalty provisions as the commissions or omissions by the respective persons may invite - the matter has to go back to the original authority for appreciating the facts vis-à-vis penal provisions and to pass a suitable order. Imposition of penalty on truck owners/drivers - Held that:- As the case itself is remanded bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elease order has been issued. Statements of different persons involved were recorded and a show-cause notice was issued proposing: (i) Confiscation of goods imported; (ii) Confiscate the two lorries bearing registration No. KL 10 D216 owned by Shri Kunhi Mohammed and KL 10 E8937 driven by Shri M. E. Dharmarajan; (iii) Imposing penalty on Mohammad Abdul Nasar; Kunhi Mohammed, Shri P. V. Vijaykumar; Shri R. Sreekumar, Shri Philip Varghese, Shri T. Mohammed, Shri M.E. Dharmarajan, Shri Tissan J. Thachankary of M/s. Asian Terminals; Shri Mathew Philip and Smt. Ajitha Sajith. 2. The Commissioner of Customs vide Order-in-Original has confiscated the impugned goods vide Order No.40/2006 dated 12.12.2006, however, (i) confiscated the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 112(b) talks the manner of dealing with the goods after importation, this has been clearly enunciated by this very Bench in the case V. Lakshmipathy vs. Commissioner of Customs, Cochin: 2003 (153) ELT 640 (Tri.-Bang.), wherein it has observed in para 2(c) as under: "The imposition of a penalty under Section 112(a) of the Customs Act presupposes an existence of an element of mens rea. There is no evidence to indicate any such guilty mind on the part of the appellant herein. There is no evidence that the appellant herein had dealt with any manner with the goods found to be liable to confiscation. The provisions of Section 112 would apply only to persons who engage themselves in the physical act of importation of the goods. Whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the adjudicating authority. 3. The learned DR for the Department has reiterated the findings of the Order-in-original and has submitted that the conclusions were drawn by the Commissioner after going through the facts of the case and the statements of the concerned persons recorded during investigations. The statements were not retracted before the issue of show-cause notice and hence, the statements can be relied upon. Therefore, the question of showing lenience towards the drivers is not called for. He relied upon the case of Gobind Lal vs. CC, Jaipur: 2000 (117) ELT 515 (Tri.) wherein it was held that: "Statement made before Customs official is a material piece of evidence collected under Section 108 of the Customs Act, 1962 and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Mahindra Chandra Dey: 1997 (89) ELT 478 (Cal.) The High Court held that confessional statement given before the Customs Officers is admissible as evidence, since while giving statement the person was neither accused nor deprived of personal liberty not the proceeding a judicial one. 6 M/s. Gopal Textile Mills (P) Ltd.: 2007 (215) ELT 558 (Tri.Ahmd.) The Tribunal held as maintenance of private records and removal of goods entered in the private records without payment of duty - Officers of company admitted clandestine removal of their statements were not retracted later - Such admitted facts need not be corroborated or proved, therefore, absence of further investigation for corroboration not to be held against Department. 4. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as erred in putting both the subsections together while imposing penalty. It was incumbent on the part of the adjudicating authority to clearly satisfy the offence of each of the persons involved and then to apply the penalty provisions as the commissions or omissions by the respective persons may invite. Therefore, as requested by the learned counsel for the appellants, we find that the matter has to go back to the original authority for appreciating the facts vis-à-vis penal provisions and to pass a suitable order. 4.1 Regarding the request made by the learned counsel regarding the imposition of penalty on truck owners/drivers is concerned, we find that as the case itself is remanded back for a fresh consideration on the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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