2025 (7) TMI 1013

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....em by passengers arriving from Bangkok. Accordingly, on 14.01.2015, Shri Avijit Sarkar, holding Airport Entry Pass No. T0002568 with the Organisation M.K. Enterprise, with Designation: Utility Hand, was intercepted by the Customs Officers. On search of his person, 04 (four) pieces of 24 karat gold bars weighing 3000 grams and valued at Rs.82,50,000/- (Rupees Eighty Two Lakh and Fifty Thousand only) were recovered from his shoes. The recovered gold, the pair of shoes worn by Shri Avijit Sarkar and the wrapping materials, were seized under Section 110 of the Customs Act, 1962. 3. In his statement recorded under Section 108 of the Customs Act, 1962, Shri Avijit Sarkar has inter alia stated that he is an employee of Alliance Air and another person, named Ajit, of Airport Authority of India, had lured him into smuggling the said gold bars in lieu of monetary consideration of Rs.10,000/-; that he was instructed by the said person to stay in cabin no. 3 of the toilet near the arrival immigration office immediately on arrival of Flight No. TG-313; that he had been informed that on arrival of the Flight No. TG- 313, one person would enter into the adjacent cabin and deliver the gold bars t....

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.... alia imposed a penalty of Rs.30,00,000/- on Shri Suvadeep Dutta (appellant herein) under Section 112(a) and 112(b) of the Customs Act, 1962. 6.2. On appeal before the Ld. Commissioner (Appeals), the penalty imposed on the appellant was upheld, vide the impugned order dated 17.07.2019. 7. The appellant has made various submissions, which are summarized below: - (i) The entire case has been made out against him on the basis of statements of two persons, namely, Shri Avijit Sarkar and Shri Ajit Kumar Majhi. It is submitted that there were several contradictions in the statements given by these two persons. Other than the said statements, there is no other evidence available to implicate the appellant in the present case. It is the settled position of law that under such circumstances, opportunity of cross- examination must be given, to cross examine the persons who have given the statements. However, in this case, the request for cross- examination of the said two persons has not been allowed by the ld. adjudicating authority. (ii) It is also the settled position of law that no penal action can be initiated against a person unless the said person is given an opportunity to defe....

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....abetting the said offence. Therefore, he submits that the ld. adjudicating authority has rightly imposed penalty on the present appellant. Accordingly, the Ld. Authorized Representative of the Revenue supported the impugned order. 9. Heard both sides and perused the appeal records. 10. I find that the present appeal relates to the imposition of penalty on the appellant under Section 112(a) and 112(b) of the Customs Act, 1962. 10.1. It is a fact on record that three (03) kgs. of gold were recovered from one person by name Shri Avijit Sarkar at the NSCBI Airport, who has stated to have received the same from a passenger arriving from Bangkok by Thai Airways flight no. TG-313 on 14.01.2015. In his statement, Shri Avijit Sarkar informed that one Shri Suvadeep Dutta, the appellant in this case, and another Shri Ajit Kumar Majhi, have lured him into smuggling out the said gold bars in lieu of a monetary consideration of Rs.10,000/-. It has been revealed by the said Shri Avijit Sarkar that he had been instructed by the said persons to stay in the cabin no. 3 of the toilet near the arrival immigration office immediately on arrival of the flight no. TG-313, wherein one person arriving by....

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....t was recorded on 17.04.2015. If the appellant had no role to play in the alleged offence, it is not clear as to why he sought anticipatory bail and avoided recording of statements by the Customs authorities. 13. I also take note of the appellant's submission that he was not present in the Spice Garden Bar Cum Restaurant on the night of 14.01.2015 and also that he did not accompany the other persons/co-accused in his car. However, analysis of the call records in this case has clearly revealed that the appellant was making frequent calls to Shri Ajit Kumar Majhi from13.01.2015 to 15.01.2015, as below : - Ajit Kumar Majhi Suvadeep Dutta 13.01.2015 14.01.2015 15.01.2015 8337045353 9830006193 11 calls, 740 sec 19 calls, 1540 sec 2 calls, 155 sec   9836354149 - ---- 17 calls, 2144 sec   9674632904  (Hiyat Sekh) ------- 6 calls, 252 sec ------- 13.1. Thus, I do not find any merit in the submission of the appellant that he was not present in the Spice Garden on 14.01.2025. 14. Further, it is observed that the ld. adjudicating authority has given a categorical finding regarding the role of the appellant, in the impugned order, which is reproduced below....