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TMI Blog2025 (1) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.5.18 by DRI officers and Shri Krishna Kumar Gupta has stated that the appellant as the important person connected with the smuggling of gold in that case. Apart from the statement of Shri Krishna Kumar Gupta there was no other evidence to implicate the appellant in the present case. The appellant had categorically stated that he was known to said Shri Krishna Kumar Gupta since both of them were working together at Chhat Puja Committee at Phuentshelling. Shri Krishna Kumar Gupta had also corroborated such fact during the course of cross-examination. In such circumstance, it is observed that no adverse conclusion can be arrived at against the appellant on the basis of the sole confessional statement of the co-accused which had been retract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable upon the appellant and hence we set aside the penalty imposed on the appellant. Conclusion - No adverse conclusion can be arrived at against the appellant on the basis of the sole confessional statement of the co-accused which had been retracted and also denied to be voluntary during cross-examination. The penalty imposed is set aside. Appeal allowed. - SHRI R. MURALIDHAR, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Arijit Chakraborty, Advocate for the Appellant Shri S. Chakraborty, Authorized Representative for the Respondent ORDER Shri Birendra Kumar Gupta (herein after referred as the appellant) is a resident of Alipurduar-Jaigaon, Dist., West Bengal. The appellant was imposed a penalty of Rs.7,00,000/- in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gold is smuggled in nature and thus, liable for confiscation under the Customs Act, 1962 and the appellant is liable for penalty under Section 112(a) and/or 112(b) of the Customs Act, 1962. It is alleged in the said Show Cause Notice that the appellant appears to be the most important person involved in this smuggling of the impugned gold bar of foreign origin and had actively colluded with other members of the syndicate and tried to mislead the investigating agency. The entire allegation has been made on the basis of the alleged statement of Krishna Kumar Gupta and a telephone call of 14 seconds between them, just half an hour before interception of Krishna Kumar Gupta. Reference has also been made to two earlier cases involving the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gravity of offences committed by him and accordingly, on the basis of the confessional statement of Shri Krishna Kumar Gupta and a telephonic call half an hour before the interception, between the appellant the said Shri Krishna Kumar Gupta, the appeal of the appellant has been rejected. If the outcome of the cross-examination is taken into account, there cannot be any imposition of penalty upon the appellant in the present case. Accordingly, he prayed for setting aside the impugned order. 6. The Ld. A.R. submits that the appellant is a habitual offender and implicated in smuggling cases earlier. Accordingly, he submits that penalty has been rightly imposed on him. 7. Heard both sides and perused the appeal documents. 8. We observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other and there is nothing irregular or illegal in exchange of call between two known persons. Accordingly, we hold that on the basis of such telephonic call, it cannot be assumed that the appellant was involved in any act of smuggling. 8.2. In the impugned order, it has also been alleged that the appellant had been imposed penalty in two different cases on earlier occasions. The appellant submitted that he has preferred two appeals before the Tribunal in both the cases challenging the imposition of penalty on him. It is his submission that until and unless such imposition of penalties reached a finality, it is cannot be concluded that the appellant is a habitual offender. In this regard, we agree with the submission of the appellant. Impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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