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TMI Blog2021 (11) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... dulent export of hand-woven carpets is the act after the impugned fraudulent export got unearthed and after the mastermind behind those export, Shri Sajjan Kumar, had already availed the unreasonable, unjustified, illegal duty draw-back benefit. There is no evidence for the present appellant to at all be the beneficiary of the said illegal benefit being drawn by said Shri Sajjan Kumar. Irrespective the said statement has been retracted, but there is no iota of utterance in any of the statements of Shri Sajjan Kumar about the present appellant or the Co-Inspector Shri Subhash Chand to ever have facilitated him prior he exported those carpets. In absence thereof, the only lacuna on part of the present appellant is that they conducted inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been an intention to give false or incorrect statement. But as already mentioned above that lapse in obtaining the correct information from improper source cannot be called as an intentional act of giving wrong information. Hence no question arises for imposition of penalty - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of vide Final Order of this Tribunal bearing No.51657/2021 dated 13.07.2021 vide which the penalty against Subhash Chand has been set aside. 5. Ld. Counsel has impressed upon that Naresh Kumar is absolutely similarly placed. In addition, it is submitted that Naresh Kumar was freshly appointed Inspector at the said relevant time and was not even given the initial training. The impugned Inquiry was marked to Inspector Subhash Chand and the present appellant, Inspector Naresh Kumar was directed to join with the motive of training/ learning. Ld. Counsel has requested for same relief, as has already been extended in favour of said Subhash Chand to be extended. It is finally submitted that there is no iota of any evidence proving alleged ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y facilitate export of such goods, which are otherwise liable for confiscation. In addition, the person committing such act or such omission should be doing so knowingly with an intention to facilitate the export of such goods which otherwise is not permissible. 9. In the present case apparently and admittedly, the act / omission on part of the appellant in improperly conducting the Inquiry of the fraudulent export of hand-woven carpets is the act after the impugned fraudulent export got unearthed and after the mastermind behind those export, Shri Sajjan Kumar, had already availed the unreasonable, unjustified, illegal duty draw-back benefit. There is no evidence for the present appellant to at all be the beneficiary of the said illegal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigate, to conspire or to aid/facilitate a person to do or abstain from doing something, which is a defined penal offence and that the abettor is the part of the conspiracy with an intent to draw back benefit out of the alleged offence. Apparently and admittedly, there is nothing on record produced by the Department to show the involvement of the appellant and the Co-Inspector for insighting or conspiring with or aiding or facilitating said Sajjan Kumar at the stage prior he made the exports. There is no evidence for the appellant and the Co-Inspector to be the beneficiary of the amount of duty draw-back illegally availed by said Sajjan Kumar. Accordingly, the statement of the appellant and co-Inspector Shri Shri Subhash Chand though is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sus Commissioner of Cus.(ICD), New Delhi 2015 (330) ELT 161 (Tri. - Del.), where the Hon'ble Tribunal was pleased to pass the following:
"41. So far as imposition of penalty is concerned mens rea plays a vital role to determine quantum thereof. That aspect was not looked into in the adjudication. Mechanically penalties have been imposed in page 77 of the adjudication order without stating any reason as to imposition and determination of quantum thereof, which appears to be disproportionate, in existence of conflicting evidence on record."
12. The findings of Commissioner (Appeals) are therefore, set aside. Consequent to entire above discussion, the appeal in hand is hereby allowed.
[Dictated and pronounced in the open Court] X X X X Extracts X X X X X X X X Extracts X X X X
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