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TMI Blog2024 (12) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.10.2018 were subjected to examination. This revealed mis-declaration. Apart from Bamboo Sticks, laptop adaptor, wrist watch, belt, lingerie set, ladies hand bag, cosmetics items, etc were found. The said undeclared goods placed under detention. Statements of various persons were recorded in this regards. Inquiry with Shri Gauarv Patel revealed that he had imported several items like assorted cosmetic items, electronic items, garments, ladies purse, oil filter etc. on earlier occasion also under Bill of Entry No. 7735855 dtd. 22.08.2018. The officers traced these goods from a premises in Pydhonie, Mumbai and placed the same under detention and shifted them to ICD, Thar (Sanand). It appeared that these were branded goods, opinion was taken from respective brand owners/right holder, etc. All of these opined that goods are counterfeit. After investigation, SCN dated 01-10-2019 was issued to importer and other persons including Appellant, proposing confiscation of the goods, demanding differential custom duty and proposing imposition of penalties under customs Act, 1962. In adjudication, Ld. Adjudicating Authority as regard the appellant has imposed the penalty under Section 112(a), 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant in the case. Thus, the Appellant is falsely implicated in the this case for his limited role of assisting Shri Gaurav Patel in purchasing Chinese goods for import into India in his own company. Since he had himself selected the items from China and had been filing bill of entry for the said goods, the Appellant had every reason to believe that these goods were freely importable into India. 2.3 He also submits that on the above basis, the Appellant was not involved in shipping any incriminating goods into India or preparing or getting prepared any documents based on which Shri Gaurav Patel filed Bills of Entry with Customs House, Mundra. Hence, the Appellant is not liable to penalty under Section 112(a), 112(b) and 114A of Customs Act, 1962. 3. On the other hand Shri Girish Nair, Ld. Assistant Commissioner (AR) reiterated the findings of the impugned order. 4. Heard both sides and perused the Appeal records. The short question arising for consideration is whether the penalty imposed on the appellant under Section 112(a), 112(b) and 114AA of the Customs Act is sustainable on facts and in law. 4.1 We find that the role of the Appellant in the whole episode has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction as to why they had not arrested him, therefore, the proceedings against Mohinder Singh on the basis of the statements of co-accused is not sufficient to hold him guilty of gold smuggling, especially when no search and recovery has been done at his place. Even there is no evidence of previous record of gold smuggling against him. The appellants Ravi Garg, Surinder Kumar Anand and Shyam Babu Verma have implicated Mohinder Singh but these statements which are self-implicating in nature, should have been confronted to Mohinder Singh. It is not sufficient to say that the summons were pasted on his shop and merely because he has not come forward to give statement to explain the allegation made against him by co-accused, therefore, the case against him stands proved. The principles of natural justice require that the accused in a matter is required to be confronted with the evidence, which the department has collected against him and full opportunity should be given to an accused to defend himself. It is not the case of the department that the address of Mohinder Singh is not correct. The postal remarks on the summons sent by the DRI shows that on repeated visits the shop was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld depend on whether his conduct satisfied the requirement of Clause (a) and (b) of Section 112 of the Act. In order that a person is penalised under the above provision, it has to be established that he in relation to said goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act and he acquired possession of or was 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 knew or had reason to believe, were liable to confiscation under Section 111 of the Act. As per the revenue the appellant had dealt with the goods by associating himself with the modus operandi of clearance of the goods. The role of the appellant in the present matter was argued by the department was to arrange finance and to purchase disputed goods from China and export to India. Ld. Consultant has opposed this argument on the ground that no evidences provided by the revenue in this regards. We also find force in argument of Ld. Consultant. We also noticed that no physical act of the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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