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TMI Blog2022 (10) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... is not reliable. There is absence of any other evidences to corroborate the statement of Anil Jain against this appellant. Appeal allowed - decided in favor of appellant. - Customs Appeal No.51446 of 2022 (SM) - FINAL ORDER NO.50902/2022 - Dated:- 24-8-2022 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Arjun Singh, Advocate for the appellant. Shri Ishwar Charan, Authorised Representative for the respondent. ORDER Heard the parties. 2. The issue involved in this appeal is whether the appellant has been rightly imposed penalty under Section 114 of the Customs Act. 3. The brief facts are that the officers of ATS (Anti-Terrorist Squad) intercepted one Mr. Anil Jain resident of Kishangarh (Ajmer), outside the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Reserve Bank of India. 5. On being asked by the officers, Mr. Anil Jain stated that he has been working with New Satguru Trading LLC, Dubai for the last seven years at a salary of 6000 Dirham per month. He also informed that the said Foreign Currency has been given to him by one Shri Bharat Thadani, resident of Christian Ganj, Vaishali Nagar Road, Ajmer on 16.07.2018 at a Foreign Exchange Shop, No.249, Opp. LMB Hotel, Johri Bazar, Jaipur. Mr. Anil Jain further informed that he would have delivered/handed over the said currency in Dubai to one Shri Jonny Thadani, who is younger brother of Shri Bharat Thadani and he would have received Rs.20,000/- for delivery of the said currency at Dubai. 6. The statement of Shri Anil Jain wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamlesh Thadani at Dubai for the last 4 to 5 years; that he himself had worked in Dubai from 2012 to 2016 at Haldiram Company. At the same time, he worked part time at Mobile Shop of his brother-in-law, Shri Kamlesh Thadani; that he met with Shri Anil Jain only at the shop of Kamlesh Thadani, after that he had no contact with him. He neither met Shri Anil Jain after 2016 nor he contacted him over his phone; that he did not give Rs.20,000/- to Shri Anil Jain for delivering the foreign currency to his brother, Shri Jonny Thadani at Dubai; that he has been using Mobile No.7014416360 since 2016; he does not recall that the SIM of his mobile was issued from the identity of one of his family members, but only he has been using this mobile no.; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain was recorded on 12.11.2018, wherein he reiterated that he was in regular contact with Shri Bharat Thadani, who had ordered for supplies of Apple 1-phones, branded perfumes, food supplements, cosmetic items, etc., from Dubai, to be sold in India. Whenever he went to Dubai, Shri Bharat Thadani contacted him for such items and for carrying these items, he was given money by Mr. Thadani. As per instructions from Mr. Bharat Thadani, he had collected foreign currency amounting to Rs.35,50,026/- from M/s. Harish Forex Pvt. Ltd., for which Bharat Thadani had already made payment to the present appellant - Harish Bhatija. However, Shri Harish Bhatija has not given any bill in respect of the foreign currency delivered to him ( Mr. Anil Jain). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to any goods does or omit to do any act, which act or omission would render such goods liable to confiscation under Section 113 of the Act. As this appellant has not done any of the violations, as mentioned under Section 114, he is not liable to penalty. Further, urged that show cause notice is based on third party statement, which are not substantiated. Separate replies were also filed by the other co-noticees. 12. In his reply, Shri Anil Jain, inter alia, stated that he was intercepted by the Customs officers outside the Airport premises and thus, he did not enter customs area, and accordingly, the seizure and allegation of attempt to smuggling foreign currency and Indian currency is bad in law and on facts. 13. Shri Bharat Thadan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very first instance, this appellant has denied interaction either with Mr. Anil Jain or with Mr. Bharat Thadani. Further, admittedly, as per call detail records, there is no calls made by this appellant with other co-noticees. It is further urged that Revenue neither examined their witness - Anil Jain in the adjudication proceedings nor any cross examination was ever offered, which is gross violation of the provisions of Section 138 B of the Customs Act. Accordingly, imposition of penalty, relying on the statement of Mr. Anil Jain is bad both in law and on facts and further, relies on the ruling of the Tribunal in the case of Marshal Machado Vs. CC(Export), Mumbai 2015 (330) ELT 334. 16. Ld. Authorised Representative relies on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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