TaxTMI 
TaxTMI 
2022 (8) TMI 661
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....s under panchanama dtd. 04.06.2019. The officers opened the packet and found the same contained 47 gold bars. The officers seized the said gold under Seizure memo dtd. 04.06.2019. Statement of Shri Jignesh Savaliya was recorded wherein he stated that the said gold bars were given to him by a person named Shri Lokesh Sharma and he was supposed to hand over the same to Shri Rutugna Trivedi outside the Airport terminal. The officers further carried out the investigation and the evidences in the form of statements of persons involved in smuggling of gold, documents recovered after searches carried out at various locations, documents recovered and retrieved from the Mobile phones of various persons involved in smuggling of gold, data storage devices recovered from the residence of Ms. Nita C Parmar and also the email recovered from account of Shri Jignesh Savaliya and Shri Jitendra Rokad reveal that a Gold smuggling racket was orchestrated and operated by Shri Rutunga Trivedi, his wife Smt. Hina Rutunga Trivedi and their employee and key associate Ms. Nita C Parmar. This smuggling activity was aided by Shri Jignesh Savaliya, Asst. Duty Officer of M/s Global Ground India Pvt. Ltd., groun....
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....t appears that Appellant was knowingly involved in smuggling of gold into India which he had reasons to believe the smuggle under Section 111 of the Customs Act, 1062. After following due process, the adjudicating authority vide impugned order dated 29-11-2021 confirmed the charges and demands proposed in Show Cause Notice. He imposed the penalty of Rs. 50,00,000/- under Section 112(b)(i) of the Customs Act 1962 on the appellant. Being aggrieved, the appellants preferred appeal before this Tribunal. 3. The Learned Consultant, Shri H.R. Garg appearing on behalf of Appellant submits role of the Appellant in the whole episode has been derived only from oral statements of two persons namely Ms.Divya Kishore Bhundia and Shri Jignesh Savalia. The above statements remained uncorroborated inasmuch as during the investigation, the Appellant was examined and his statement was recorded on 05.09.2019 wherein to a specific question, he replied that 'he did not know Shri Jigneshkumar Govindbhai Savalia and Ms Divya Kishore Bhundia and did not agree about the mention of his name made by them in their respective statements. The Adjudicating authority has therefore erred in holding that the knowle....
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....issioner wrongly interpreted this and unfairly observed in impugned order. By relying the ratio of case law in the matter of Mahendra Kumar Bajpai and Girish Agarwal Vs Commissioner, Customs, Goods & Service Tax & Central Excise, Lucknow reported as 2021 (12) TMI 291 - CESTAT ALLAHABAD he submits the penalty imposed on the Appellant to be set aside. 3.3. He further submits that the Adjudicating authority has erred in observing that towards his active role in the smuggling activity, the Appellant was awarded with the designation of Independent Director by Shri Rungta Arvindkumar Trivedi in his company M/s Akhand jyot Energy & Power Products Pvt Ltd. The Appellant had stated in his statement recorded on 05.09.2019, inter-alia, that he met Shri Rutugna Arvindkumar Trivedi during an exhibition of LED Lights at Delhi in June 2018 and thereafter interacted on several occasions and that in March 2019, he was inducted as an Independent Director in M/s Akhand jyot Energy & Power Products Pvt Ltd a company of Shri Trivedi. The Ld. Commissioner has ignored this fact and substituted it with his personal opinion regarding induction of the Appellant as an Independent Director in the company of ....
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....ide on this ground alone. 4. Shri R P Parekh, Superintendent Authorized Representative appearing on behalf of the Revenue reiterates the findings of the impugned order. 5.. We have carefully considered the submissions made by both sides and perused the record. To examine the above issues, it would be appropriate to extract Section 112 of the Customs Act, 1962 which reads as :- "112. Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any 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, or (b) who 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, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater; ....
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.... 05.06.2019 that Shri Rutugna Arvindkumar Trivedi had informed him that the money is yet to be sent to Dubai by one Mr.Lalitbhai. In her statement dtd. 16.07.2019, Ms.Divya Kishore Bhundia has stated that the financial help with regard to the smuggling activity was done by the Noticee and the smuggled gold was being handed over to Ms. Nita Chunilal parmar, who later on was sending the same to Shri Lalit Jain. Thus, the knowledge and involvement of Noticee is corroborated by the versions of Shri Jigneshkumar Govindbhai Savaliya and Ms.Divya Kishore Bhundia. Further Ms.Jagruti Pradeep has stated in her statement dtd. 07.11.2019 that Noticee was enrolled as an independent director in M/s Akhandjyot Energy & Power Products Pvt. Ltd. in the year 2019. Towards his active role in the smuggling activity, Noticee was awarded with the designation of Independent Director by Shri Rutugna Arvindkumar Trivedi in his frim. The conjoint analysis of the above facts, indicate that Noticee has financed the activity of gold smuggling and been actively involved in the entire activity. As agaist the same Noticee has failed to produce any evidence to establish his innocence in the matter. Accordingly, ....
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....ollector 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 DahiyaVs. 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 UzZamanVs. 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.) 5.3 We further find that in the present case persons were not examined in the adjudication proceedings and as such their statements are not admissible for framing the charge against the appellant as evidence under the provisions of Section138B of Customs Act, which provides that - if an authority in any proceedings under the Act wants to rely upon the statement of any person (made during enquiry), such person is required to be examined as witness and if the adjudicat....
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....he case are that the appellant is neither the importer nor the owner who had acquired possession nor in any way concerned with the carrying, removing, etc., of the goods in question, and Revenue has nowhere ascribed knowledge of the appellant as to the confiscation. 5.5 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. It is submitted that it is not the case of the Revenue that the Noticee 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. 5.6 Section 112(b) of the Customs Act is identical to earlier Rule 209A of the Central Excise Rules, 1944 and Rule 26 of Central Excise Rules, 2002. Relevant extracts of the provisions of Customs Act, 1962 Central Excise Rules, 1944 and Central Excise Rule, 2002 are reproduced her....
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....belief that the goods are liable to confiscation under the Act or Rules or he has been in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or has in any other manner dealt with any excisable goods with such knowledge or belief. Acquisition of possession of goods is, indisputably, a physical act i.e. the act which could not have been done without handling or movement of excisable goods as mentioned in the rule. The words "who acquires possession" would indicate that the person sought to be penalized under this rule has to first acquire the possession and then do the activity of transportation etc. as contained in the rule. It is, thus, clear that the physical possession of the goods is a must for doing the activity of transporting referred in Rule 209A. The ratio laid down by this Court in Jayantilal Thakkar & Co. (supra) covers the issue. In the said judgment, it is held that in the given situation, if the assessee is only issuing invoices wherein there is no movement of the goods, they cannot be visited with penalty under Rule 209A." 5.7 The Larger Bench of the Tribunal in the case of Steel Tubes of India Ltd. Vs. Commissioner of....