2025 (9) TMI 202 - AT - Customs

Penalty under s.112(b) set aside for appellant one for lack of direct evidence; appellant two's penalty reduced

CESTAT held that penalty under s.112(b) was unsustainable for appellant no.1 due to absence of direct evidence and incomplete cross-examination of ... Levy of penalty u/s 112(b) of the Customs Act, 1962 - smuggling of Gold Biscuits - possession of gold or not - cross-examination of witnesses - violation of principles of natural justice - HELD THAT:- One of the officers who had drawn the Panchanama, during the course of cross-examination, has stated that he was not present throughout the operation. Moreover, the investigating officers of Delhi Zonal Unit who were present at the time of search operation at appellant's premises were not brought for cross-examination. From the findings recorded by the Ld. adjudicating authority, it is observed that no direct evidence as to the involvement of Shri Ajit Shinde has been put forward by the Investigation. Thus, there is no evidence available on record to implicate the appellant no. 1 in the alleged smuggling activity of gold - it is clear that the evidence on record does not indicate that the appellant no. 1 has played any role in the alleged offence. Thus, the ingredients as mentioned in Section 112(b) of the Customs Act, 1962 are not established against the appellant no. 1 for imposing penalty on him. Accordingly, we hold that the penalty imposed on the appellant no. 1 under Section 112(b) of the Customs Act, 1962 is not sustainable and hence, the same is set aside. The appellant had requested for cross examination of the Pancha witnesses. The observations recorded by the ld. adjudicating authority in the impugned order with respect to cross examination are relevant to the case of the appellant no. 2 also. In paragraph 27.4.9, the Ld. adjudicating authority recorded that on 30.01.2017 fixed for cross examination the panch witnesses did not appear. Thus, the appellant no. 2 was not given the opportunity to ascertain the truth from the panch witnesses. Thus, the submission of the appellant is agreed upon that the principles of natural justice were not accorded to him while deciding this case. Considering the fact that there is no evidence to clearly indicate that the appellant no. 2 was having possession of the said 40 pieces of gold, as alleged, in his possession or that the said gold had been received from his physical possession, we find the quantum of penalty imposed on the appellant no. 2 under Section 112(b) of the Act is very harsh. Hence, the penalty imposed on the appellant no. 2, namely, Shri Chetan Palgota, can be reduced, to commensurate with his role and the evidences available on record against him. In view of the above, the penalty imposed on Shri Chetan Palgota under Section 112(b) ibid. is reduced from Rs.75,00,000/- to Rs.10,00,000/-. The impugned order, qua imposition of penalties on the appellants herein, stands modified - Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether the ingredients of Section 112(b) of the Customs Act, 1962 are established against a noticee where no gold was seized from his possession and there is no corroborative evidence of receipt, handling, sale or purchase of the seized gold. 2. Whether denial, partial allowance or ineffective facilitation of cross-examination of Panch witnesses and investigating officers, and non-supply of relied upon documents as per the show cause notice, vitiates adjudication proceedings for breach of principles of natural justice. 3. Whether the quantum of penalty under Section 112(b) is sustainable or requires reduction where (a) the noticee was present at premises where seizure occurred but there is no direct evidence of possession or delivery of seized goods, and (b) circumstantial evidence points to some involvement in a syndicate. ISSUE-WISE DETAILED ANALYSIS Issue 1: Sustainability of penalty under Section 112(b) in absence of seizure/corroborative evidence Legal framework: Section 112(b) permits imposition of penalty for knowingly performing acts facilitating smuggling or dealing in smuggled goods. Penalty liability requires establishment of the statutory ingredients, by direct or admissible circumstantial evidence that links the noticee to the illicit activity. Precedent Treatment: The adjudicator and appellate record refer to settled principles that assumptions, surmises and conjectures cannot substitute evidence. The appellant relied on authorities on denial of cross examination and supply of documents; the Tribunal considered such principles in assessing admissibility and probative value of material. Interpretation and reasoning: The Tribunal examined the material put forward against the noticee: absence of seizure from his possession, lack of corroborative documentary evidence of receipt or dealing, witness testimony showing that some investigating officers were not present throughout the search, and that the Delhi Zonal Unit officers present were not produced for cross-examination. The adjudicator himself recorded that 'no direct evidence as to the involvement of' the noticee was produced and relied instead on circumstantial pointers (SIM card procured in his name, call records, alleged fugitive behaviour). The Tribunal found that such circumstantial material on record did not satisfactorily establish the statutory ingredients of Section 112(b) against that noticee. Ratio vs. Obiter: Ratio - where there is no seizure from a noticee and no corroborative evidence of receipt/handling/sale/purchase, penalty under Section 112(b) cannot be sustained. Obiter - commentary on the probative weakness of certain call records and officer availability is explanatory but supports the central holding. Conclusions: The Tribunal concluded that the penalty imposed under Section 112(b) on the noticee with no physical seizure or corroborative evidence is not sustainable and set aside the penalty. Issue 2: Effect of denial or ineffective facilitation of cross-examination and non-supply of relied upon documents on validity of adjudication Legal framework: Principles of natural justice are applicable to adjudication under the Customs Act. The noticee is entitled to disclosure of documents relied upon with the show cause notice and to effective opportunity to cross-examine witnesses whose statements are relied upon, failing which the adjudication may be vitiated. Precedent Treatment (as relied and considered): The appellants relied on several authorities affirming that denial of cross-examination vitiates adjudication and that all relied upon documents must be supplied. The Tribunal acknowledged these principles and examined whether they were honoured in the record. Interpretation and reasoning: The Tribunal reviewed the chronology and record of cross-examination requests and the adjudicator's notes. Two DRI officers were cross-examined; however, officers from the Delhi Zonal Unit who purportedly participated in the search were not produced. Dates fixed for cross-examination of Panch witnesses resulted in non-appearance of those witnesses. The Tribunal noted that some Pancha witnesses had signed Panchanama in the DRI office and were not produced for cross-examination; some investigating officers admitted not being present throughout the search. The record also reflects that not all documents listed as relied upon were supplied with the show cause notice (partial supply only). The Tribunal treated these deficiencies as relevant to the weight of departmental evidence and to the procedural fairness of adjudication, particularly where the department's case depended on particulars that could be tested only by cross-examination or by perusal of all relied documents. Ratio vs. Obiter: Ratio - failure to effectively allow cross-examination of material witnesses and non-supply of relied upon documents undermines the fairness and probative basis of adjudication and may vitiate findings reliant on such untested material where those findings are crucial to imposition of penalty. Obiter - the observation that the adjudicator attempted to allow some cross-examination but practical non-production of witnesses rendered that effort ineffective, which is explanatory of how breaches occurred in the present case. Conclusions: The Tribunal found that the appellants were not given a fully effective opportunity to cross-examine crucial Panch witnesses and some investigating officers; together with incomplete supply of relied documents, these procedural lapses affected the Department's evidentiary case and weighed in favour of relief to the appellants (complete discharge for one, reduction of penalty for the other). Issue 3: Appropriateness of penalty quantum where presence at seizure site and circumstantial links exist but direct possession is unproven Legal framework: Penalty quantum under Section 112(b) must be commensurate with the role established by evidence. Where direct possession or receipt of seized goods is not proved, but surrounding circumstances indicate possible involvement in a syndicate, proportionality requires assessment of the nature and quality of evidence and the noticee's degree of participation. Precedent Treatment: The Tribunal applied general principles of proportionality and mitigatory assessment in penalty imposition and reduction where the evidence establishes a lesser degree of culpability. Interpretation and reasoning: For the second noticee the record showed physical presence at the seizure premises and departmental assertions of recovery of 40 gold pieces from him; yet no Panchanama contemporaneously drawn at the site supported recovery from his person and Pancha witnesses were not produced. The Tribunal accepted that circumstantial evidence (presence at the site, syndicate pattern) prevented total exoneration, but held that the quantum of penalty originally imposed (very high figure) was disproportionate to the evidence available specifically against him. Considering absence of clear proof of physical possession or delivery and the procedural lapses noted, the Tribunal exercised its power to moderate penalty to align with the established degree of involvement. Ratio vs. Obiter: Ratio - where circumstantial evidence indicates involvement but direct possession/receipt is unproven and procedural lapses impair the Department's case, the Tribunal may reduce a penal quantum to one commensurate with the role supported by admissible evidence. Obiter - remarks on the syndicate nature of operations and collective culpability elaborate factual context but do not form the basis for sustaining the original quantum. Conclusions: The Tribunal held that the second noticee could not be entirely absolved given presence and circumstances indicative of syndicate participation, but the original penalty was excessive in relation to the proved role and evidence; consequently the penalty was reduced to a lower, commensurate amount. Cross-references and interplay of issues The Tribunal's conclusions on Issue 1 and Issue 2 are interlinked: absence of direct evidence (Issue 1) was reinforced by procedural deficiencies in cross-examination and document supply (Issue 2), leading to setting aside the penalty for one noticee. For Issue 3, the Tribunal balanced circumstantial indicia of involvement against procedural shortcomings and lack of direct proof to reduce, rather than wholly cancel, penalty.