TaxTMI 
TaxTMI 
2020 (2) TMI 355
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....ainst the levy of penalty under Section 112 (a) of the Customs Act, 1962. 2. When the matter was taken up for hearing, Mr. Hari Radhakrishnan, Learned Advocate, appeared for the assessee-appellant and Ms. K. Komathi, Learned Joint Commissioner (Authorized Representative), appeared for the Revenue-respondent. 3.1 The submissions of the Learned Advocate for the appellant are summarized as below : • The only allegation against the appellant is that he, along with other co-noticees namely, M/s. Solai Exports & Importers (Represented by its proprietor Mr. V.S. Mathiarasu), Mr. Khaja Mohideen, Mr. Shahul Hameed, Mr. K. Francis and Mr. P. Karunanithi, was involved in the act of smuggling of gold bars; • The Revenue ....
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.... traversed beyond the Show Cause Notice by relying upon additional documents which were not at all part of the Show Cause Notice; • The so-called forensic analysis does not lead to any conclusion as to the involvement of the appellant since the appellant's mobile phone was not at all subjected to the forensic analysis, etc. 3.2 Learned Advocate would conclude his submissions by contending that the confiscated gold biscuits were lying in the cold storage of the Air Cargo Complex and none of the employees of the appellant's security agency were anywhere near it; that one Mr. Karunanithi who, according to the DRI, was clandestinely removing the gold biscuits, was not at all on duty on that particular day. He relied on the follo....
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....ely based on the statements of the co-accused and that those very statements were later on retracted. Moreover, when the appellant's statement was recorded, the appellant has categorically denied as to his involvement in any way by stating that he was not aware of any gold smuggling and that he had not given any instructions in this regard to either Mr. Francis or Mr. Karunanithi. 5.2 He further contended that, according to the DRI, the main persons involved in the smuggling were Mr. Thameen of Singapore, Mr. Khajabhai and Mr. Shahul Hameed, who were never apprehended, who alone perhaps could have spoken about the involvement or otherwise of the appellant; that in the absence of their statements, the levy of penalty is not correct. 6.....
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....Complex and that he would also make calls in turn, to ascertain further details. From this, it is perhaps routine that the appellant would get or make calls even during odd hours and hence, the calls recorded may not be significant enough to point out that the appellant was actively involved, as an abettor, in the conspiracy unless the recordings are in the form of conversations, which is not the case here. But a close look at the call records which speak otherwise, requires a lot of explanation. 9. Further, evidence in the form of statements of the co-accused namely, Mr. Francis, Mr. Karunanithi and Mr. Shahul Hameed, are not available before us and therefore, in the absence, we are unable to judge as to its contents, veracity and its i....
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....statements of persons apprehended on the early hours of the eventful day lead us to understand that considering the gravity and nature of the offence/activity alleged, the explanation offered in the form of reply is not at all sufficient to conclude as to the innocence of this appellant, as pleaded. This assumes relevance in this case because the accused/appellant is a retired military personnel who has served the nation and has pleaded that he was not even aware of what his own employees were doing, while working for him. 11.2 Further, a close look at the call records inter se the appellant, Mr. Khaja and Mr. Mathiarasu reveals that right from the beginning of March 2015 all these persons were in touch. There has been call records of Mr....