9911796707
TMI Blog2024 (11) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... d not acquire possession of or in any way concern with import of gold, penalty under Section 112(b) ought not to have been imposed. The appellant cannot come within the ambit of Section 112(b) because appellants had never acquired possession or in any way concerned in any of the activities mentioned in the Section or any measure dealing with any goods which the appellant knew or had reason to believe are liable to confiscation. In the absence of the department having not proved the knowledge of the appellant in the activities relating to the smuggled gold, there were no grounds for imposition of penalty on him. It is now well established that mens rea is an important ingredient for imposing a penalty on the persons enumerated in Section 112(b) of the Customs Act. The evidence brought out by the department nowhere suggests that the appellants were aware that the goods in question were smuggled into the India. The penalty imposed on Appellant, therefore, cannot be sustained. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. RAJU Shri Hardik Modh, Advocate for the Appellant Shri Girish Nair, Assistant Commissioner (AR) for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l (SVPI) Airport, Ahmedabad, in as much as he received the gold from these carriers and brought them outside the airport by exiting from the cargo gates. It further emerges from the evidences that this smuggling racket was actively financed by Shri Jitendra Rokad, Mehul Bhimani, Raju Goswami, Vipul Joshi and others. 1.2 The smuggling of gold from Dubai to India was carried out with intent not to pay Customs Duty using the persons as carriers. Upon arrival at SVPI Airport, Ahmedabad the gold carried by the carriers sent by Shri Rutugna Trivedi was handed over to Shri Jignesh Savaliya, either in the Aerobridge or in the ramp area of the airport. Shri Jignesh Savaliya had been concealing the gold in the dress worn by him and smuggled the same into India by exiting SVPI Airport, Ahmedabad and was handed over by him to Shri Rutugna Trivedi or the specific person sent by Shri Rutugna Trivedi and informed to Shri Jignesh Savaliya. Adopting the above modus operandi, Shri Rutugna Trivedi and his associates smuggled into India 4886.206 Kgs. Gold during the period from 07.03.2013 to 26.05.2019. The authenticity of the details of the gold smuggled into India by various carriers sent by Shri Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot make any adverse remark against the Appellant to show that the Appellant had knowledge regarding smuggling of gold into India. He even did not say in his statement that the Appellant financed him for smuggling of gold into India. The statement of Ms. Nita Parmar was simultaneously recorded on 14.10.2019 whereby she was shown print out taken from the pen-drive seized from her residence. After perusal of these documents, she stated that she could not recall the contents of the statement. Her statement is exculpatory. Statement of Shri Milan Raythatha, Partner of M/s. S.R. Tours Travels was recorded on 20.06.2019 whereby he stated that he earlier worked with M/s. Travel Mentor situated at Rajkot for 7 years and thereafter, he started his own Tours and Travel business in the name of M/s. S.R. Tours Travels. While recording his statement, he did not state that the Appellant booked air-tickets for Shri Rutugna Trivedi. 2.2 He further submitted that the Statement of Shri Manoj Mishra, Proprietor of Manish Tours Travels was recorded on 14.06.2029 whereby he stated that he used to book flight tickets of Shri Rutugna Trivedi and or his associates and he received the payment from Ms. Nita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5 He also submits that there is no evidence on record connecting the Appellant with commission of any offence in relation to the alleged gold smuggling activity. Merely because name of Appellant is reflecting in printout retrieved from the pen drive recovered from the third party ipso facto, does not make the Appellant in any way privy to the commission of any offence with reference to the alleged gold smuggling activity. He placed reliance on the following decisions:- Shri Vyomesh Vinodbhai Patel Vs. C.C. - 2022 (9) TMI 957 - AT Shri Rajesh B. Bambhroliya Vs. C.C. - CUSTOM - 2022 (9) TMI 1224 - AT Shri Harshadbahi Kantibhai Savaliya Vs. C.C. - 2022 (9) TMI 916 - AT 2.6 He also argued that Appellant during the hearing requested to grant cross examination of Ms. Nita Parmar and Shri Rutugna Trivedi since the incriminating entries found from the pen-drive recovered from the residential premises of Ms. Nita Parmar but the Ld. Commissioner did not give any proper opportunity to cross examine. The impugned order is totally against the provisions of law and principles of natural justice. The statements of the Co-Accused/Co-Noticee ought not to be relied upon in case the opportunity of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) to (p) of Section 111 have been committed in respect of the imported goods acquired or dealt with by him. For imposition of penalty under Section 112(b) of Customs Act, 1962, it is also necessary to prove that the person had knowledge or had reason to believe that the goods acquired or dealt with by him are liable for confiscation under Section 111. 4.2 We find that the the role of the Appellant in the whole episode has been derived from pen drive and data storage devices recovered from the residence of Ms. Nita Chunilal Parmar. The Printouts taken from the pen-drive seized from the residential premises of Ms. Nita contain an entry Dilipbhai[801674/- + 80167/- interest @2.5% paid. As per the revenue, the said entry expressly established that an amount of Rs. 8,81,841/- has been paid to Appellant under the head of interest. Further the travel documents retrieved from Pen-drive recovered from the premises of Ms. Nita Parmar contained the details of Cash payment made to the Travel agent for tickets booked for Shri Rutunga Trivedi. By relying the said details retrieved from the pen drive seized from the residential premises of Ms. Nita Chunilal and Statement of persons it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The statement of co-accused cannot be relied upon, particularly when appellant has denied his involvement in respect of the goods in question. In this connection, the following judgments are relevant and they supported the stand taken by the appellant:- Punam Chand Bhotra v. Collector of Customs - 1993 (63) E.L.T. 237. Jai Narain Verma v. Collector of Customs, New Delhi - 1995 (76) E.L.T. 421. Jaswinder Singh v. Collector of Customs, New Delhi - 1996 (83) E.L.T. 175. Mahabir Prasad v. Commissioner of Cus. (Prev.), I.N.B., Patna - 2000 (126) E.L.T. 803. Pradeep Shah Vs. Commissioner of Customs, Patna -2006 (197) E.L.T. 301 (Tri. - Kolkata) Vikram Singh Dahiya Vs. Comm. Of Cus.(Export), New Delhi 2008 (223)ELT 619 (Tri. Del.) Surinder Kumar Khanna Vs. Intelligence Officer, DRI- 2018(362) ELT 935 (SC) Habib Uz Zaman Vs. Commissioner of Customs, New Delhi - 2021(376) ELT 666 (Tri. Del.) K.K. Jain Vs. Commissioner of Customs, Kandla 2009(235)ELT 170 (Tri. Ahmd.) 4.7 We also find that there is absolutely no evidence on record connecting the appellant with the commission of any offence in relation to the alleged gold smuggling activity. Merely because name of Appellant was appearing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.9 We also find that the penalty under Section 112(b) can be imposed when a person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111. In the present case it is not the case of the Revenue that the Appellant was indulged in any of the activities as mentioned under Section 112(b) of the Customs Act. As the Appellant did not acquire possession of or in any way concern with import of gold, penalty under Section 112(b) ought not to have been imposed. The appellant cannot come within the ambit of Section 112(b) because appellants had never acquired possession or in any way concerned in any of the activities mentioned in the Section or any measure dealing with any goods which the appellant knew or had reason to believe are liable to confiscation. In the absence of the department having not proved the knowledge of the appellant in the activities relating to the smuggled gold, there were no grounds for imposition of penalty on him. It is now well established that mens re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
