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TMI Blog2022 (1) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... eighbridge beyond which the actual place of delivery was known only to the drivers of the trucks who remained untraceable. It cannot be considered beyond the normal course of a commercial transaction to have the goods weighed upon clearance from customs control and the participation of the appellant- Director in such undertaking does not suffice to establish any role in the further movement thereafter. The proceedings themselves comprised two parts: the goods which were found at the premises of the original high-sea sellers and imports of goods valued at ₹9,50,30,917.43 against 25 advance licence effected prior to the searches. As far as the previous consignments are concerned, and from the narration of the transactions pertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor in the alleged diversion, the penalty imposed under section 112 is liable to set aside - Appeal allowed - decided in favor of appellant. - C/251& 252/2008 - A/87404-87405/2021 - Dated:- 3-12-2021 - MR ASHOK JINDAL, MEMBER (JUDICIAL) AND MR C J MATHEW, MEMBER (TECHNICAL) Shri Prakash Shah, Advocate for the appellants Shri Ramesh Kumar, Assistant Commissioner (AR) for the respondent ORDER In these appeals, which we take up for disposal together, M/s Ami Clearing Forwarding Pvt Ltd and, its Director, Mr Lalit Mange have challenged the imposition of penalty of ₹ 20,00,000/- each under section 112 of Customs Act, 1962 in order-in-original no. 60/3007 dated 14th December 2007 of Commissioner of Customs (Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the appellants herein had connived in the diversion and, therefore, deserving of the penalties now under challenge. 3. It is contended by Learned Counsel for the appellants that, as customs house agents, their inevitable connection with the goods was misconstrued by the adjudicating authority as involvement in the diversion of goods to the market in violation of the post-importation conditions for exemption. He contends that the entire case against them has been made out on the basis of statements of co-noticees in the very same proceedings and reliance on these statements that had not, and could not have, been tested for relevancy by cross-examination is incorrect in law. Furthermore, he contends that the final disposition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Naresh J Sukhwani v. Union of India [1996 (83) ELT 258 (SC) and in S N Ojha v. Commissioner of Customs [2016 (331) ELT 33 (Del.)], it was contended that there is no flaw in relying upon statements of the co-accused. Placing reliance on the decision of the Hon ble Supreme Court in Shah Guman Mal v. State of Andhra Pradesh [1983 (13) ELT 1631 (SC) and in Commissioner of Customs, Madras Others v. D. Bhoormal [1983 (13) ELT 1546 (SC)], it was contended the departmental authorities were not required to prove the case with mathematical precision. He also relies on the decisions in Pradeep Master Batches Pvt Ltd v. Commissioner of Customs, Mumbai [2017 (348) ELT 692 (Tri.Mum)] and in Commissioner of Customs (AIR), Chennai v. A P Pinheri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of a commercial transaction to have the goods weighed upon clearance from customs control and the participation of the appellant- Director in such undertaking does not suffice to establish any role in the further movement thereafter. The proceedings themselves comprised two parts: the goods which were found at the premises of the original high-sea sellers and imports of goods valued at ₹9,50,30,917.43 against 25 advance licence effected prior to the searches. As far as the previous consignments are concerned, and from the narration of the transactions pertaining to the seized goods, it would appear that the culpability of the appellant-Director stands solely upon the statement of Mr Mohan Shah, the principal noticee in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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