TaxTMI 
TaxTMI 
2024 (5) TMI 1158
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....eal No 377-380-CUS-APPL-LKO-2018, dated 17/07/2018 of the Commissioner (Appeal) Customs, GST & Central Excise Lucknow. By the impugned order, Order-In-Original No.33/2015 dated 19.03.2015 holding as follows has been upheld:- "ORDER I impose penalty under section 114 of the Customs Act, 1962 upon the following: I. M/s Bala Ji Foods - Rs 5,00,000/- (Rs. Five Lakh only) II. Shri Badri Narayan Khandelwal -Rs 7,00,000/- (Rs. Seven Lakh only) III. Shri Durgesh Kumar Jaiswal -Rs 10,00,000/-(Rs Ten Lakhs only) IV. Shri Jitendra Kumar Jaiswal -Rs10,00,000/- (Rs Ten Lakhs only only)" 2.1 Information was received that a huge quantity of Non-Basmati Non-Basmati rice had been exported to Nepal on ....
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....ereafter a show cause notice dated 28.02.2014 issued by the Additional Director, DRI Zonal Lucknow asking the appellant 1 to show cause as to why:- (i) The impugned consignments of NON BASMATI RICE (total quantity 290.5 MTS and value Rs. 46,58,120/-) should not be held liable to confiscation under Section 113(d) of the Customs Act, 1962; (ii) Penalty should not be imposed on them under Sections 114 of the said Act. 2.5 Further, Appellant 2, Appellant 3 and Appellant 4, were called upon to show cause as to why penalty should not be imposed upon them under Section 114 of the Customs Act, 1962. 2.6 This show cause notice was adjudicated as per the Order-In-Original referred in Para 01 and aggrieved appellants filed the ....
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....was denied by the owner of M/s. R.S. Traders. The appellant-1 has admitted that the payment against the supply of rice was being made by the appellant-3 and that they issued the sales bills in the name of R.S. Traders, Jogbani, the instruction of appellant-3. This clearly establishes that they were fully aware that the rice was being exported to Nepal. Therefore contention of the appellant that they were not aware of smuggling of rice to Nepal is not tenable. The appellant-1 and appellant-2 knew that 290.50 MT of rice billed to M/s RS Traders, Jogbani, Bihar, would be smuggled to Nepal as per their understanding with the brokers. The sale proceeds were also received through brokers. The Appellant-1 and Appellant-2 are not contesting the fac....
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..... Relying on the ratio of the BHOORMULL case, Hon'ble Supreme Court in the Customs case of BALUMAL JAMNADAS BATRA, reported at 1983 (13) ELT 1558 (SC), has held that conviction and confiscation was justified if the circumstantial evidence proved that the goods were smuggled. 13. In the instant case the impugned 290.50 MT rice was billed by Appellant- 1 & 2 to M/s R. S. Traders, Jogbani, whereas the goods did not reach there. From the combined reading of the statements of all the appellants it is evident that there was a tacit understanding among themselves and concerted action by them to bill the goods to Indian firms having TIN, and divert the consignment to Nepal by filing Pragyapan Patra (ie bill of entry) at Nepal Customs s....
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....ed by the appellant and passed the order as Commissioner (Appeals). Such an order, which has been passed by the person who has himself issued the show cause notice is an interested party, is in contravention of principal of natural justice which says that no person could have been judged in his own case "Nemo judex in causa sua". That being so for such violation of the basic principles of natural justice this order could have been set aside for this reason itself. 4.4 In the present case we do not find any evidence which has been adduced in the course of proceedings before any Authority which shows that the goods sold/ cleared by the Appellant 1 have been exported or any preparation for the export of the said non-basmati rice has been ma....
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....ties in their orders have admitted that there is no direct proof of the complicity of the appellants and there is suspicion against each of the appellant and on the basis of that suspicion, the appellants have been imposed penalties. It is pertinent to note that the Tribunal in various decisions cited supra by the Learned Counsel for the appellant has consistently held that for imposing the personal penalty under Section 114(i) of the Customs Act, 1962, there should be acceptable legal evidence on record about the acts of commission or omission by the appellant. Further in order to hold that the appellant has abetted in the commission of the offence, there has to be a knowledge on the part of the appellant regarding the illegal activities o....