TaxTMI 
TaxTMI 
2025 (9) TMI 202
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.... 1962. 1.1. Customs Appeal No. 76512 of 2017 has been filed by Shri Chetan Palgota (hereinafter referred to as the "appellant no. 2") against the Adjudication Order No. 17/CUS/CC(P)/WB/2017 dated 17.05.2017 passed by the Commissioner of Customs (Preventive), Custom House, 3rd Floor, 15/1, Strand Road, Kolkata - 700 001 wherein a penalty of Rs.75,00,000/- (Rupees Twenty Lakhs only) has been imposed on him under Section 112(b) of the Customs Act, 1962. 2. As both these appeals emanate from a common order, they are taken up together for decision by way of a common order. 3. The facts of the case are that on 12.03.2014, Officers of the Directorate of Revenue Intelligence (DRI) conducted search at the business premises of Md. Hussain at 32, Munshi Sadruddin Lane, Kolkata - 700 007. At the time of search, the said Md. Hussain, along with Shri Chetan Palgota (appellant no. 2 herein), one Shri Maruti Bhimrao Patil and one Amir Pathan were found to be physically present in the said building. During the course of the said search, from the possession of the above said three persons, 40 pieces, 30 pieces and 30 pieces of gold biscuits, each weighing 116.64 grams, totalling weighing 11....
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....ma proceedings was also bereft of any cognizance and cannot be treated as valid. They wanted cross examination of the Panch witnesses, but the witnesses were not available for cross examination. Thus, the cross-examination of other Panch witnesses as had been prayed for was not held. (iii) During the course of adjudication, cross-examination of the investigating officers was made on 15.11.2016 wherein Sri Biplal Dey, I.O. DRI, KZU, to some specific questions replied that though he did the Panchnama but he did not call any search witness. Further, during search operation at the appellant's business premises, he was not present throughout the operation. It thus transpires that 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. (iv) Another I.O. of DRI, KZU was also cross-examined who, to some specific questions, indicated that he was not associated with the search team. (v) At Paragraph 28.10 (viii) of the impugned order, the ld. adjudicating authority has recorded the findings against the appellant no. 1 wherein it has been observed that the....
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....Palgota had sought cross examination of the witnesses to the Panchanama, which was not considered at all. (iii) The said gold bars were not recovered from his possession. The Department has not adduced any evidence to substantiate the allegation that the said 40 pieces of gold bars had been recovered from his physical possession. (iv) The Show Cause Notice, at paragraph 12.3, cites the call record details to indicate the involvement of the appellant no. 2 in the alleged smuggling activities. However, it is submitted that the said four mobile phones with five connections as stated in paragraph 12.3 of the Notice did not belong to him nor were the same recovered from his possession. The officers concerned in order to make out a case against him have shown recovery of the phones from his possession which is absolutely false. (v) It is further contended that the Panchanama dated 12.03.2014 was prepared in the office of the DRI. The Panchanama witnesses namely Shri Juganta Kumar Baliar Singh and Shri Girish Ishai were never present at 32, Munshi Sadruddin Lane, Kolkata, when the search was going on. The said two persons whose address are 6 & 8, Ho Chi Minh Sar....
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.... received a letter dated 29.08.2016, in terms whereof, the appellant was informed that the Ld. Commissioner of Customs (preventive) has been pleased to allow the prayer of cross examination and fixed the hearing on 13.09.2016 at 12 pm; after some adjournment the cross examination was fixed on 2.12.2016 at 11 hours. On the said date the Appellant's counsel on record appeared before the adjudicating authority and desired to cross examine the 4 search witnesses first and then the officers of DRI who had recorded the statement of the appellant. It was then pointed out by the adjudicator that the search witnesses had not been summoned by him and hence if the Learned Senior Counsel wanted he could cross two DRI officers who were present. The Learned Counsel for the appellant had pointed out before the ld. adjudicating authority that the cross examination of the search witnesses was vitally necessary (none of the search witnesses were present on the spot) as they had all signed the Panchnamas after they were prepared in the DRI office without witnessing the search and seizure. It was further pointed out by the learned counsel that the DRI officers who were present, were not the office....
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....d Mrs Priyanka Bhutoria (Advocate) to defend him in the adjudication proceedings. As the relied upon documents had not been supplied, the Learned Advocate by her letter dated 3.02.2015. prayed for supply of the relied upon documents as listed in annexure A. Subsequently copies of some relied upon documents were supplied (pages 1 to 41 were supplied out of the total 157 pages). The balance relied upon documents were never supplied. (vi) Law is well settled that all relied upon documents must be supplied to the noticee. Non supply of the entire set of relied upon documents have resulted in denial of the principles of natural justice vitiating the entire proceedings. Reliance is placed on the following judgements: • Kothari filaments and Anr v commissioner of Customs (port) Kolkata [(2009) 2 SCC 192] 10. On the other hand, the Ld. Authorized Representative of the Revenue reiterated the findings in the impugned order. On the basis of the findings in the impugned order, he justified the penalties imposed on the appellants herein. 11. Heard both sides and perused the appeal records. 12. Regarding the penalty imposed on Shri Ajit Shinde, appellant no. 1 here....
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....xamination of Shri Rajib Banerjee, then I.O. DRI, KZU by Advocate Tanvir Hossain for Shashi Kant Shinde, Noticee No.8, dated 15.11.2016; Some relevant questions and answers are as below; Que:Did you draw the 'Panchanama' and call the respective 'search witness"? Ans:- No. Que: Can you let me know the name of the DRI official who issued the "search authorization" which empowered the officers of DRI, Kolkata and Delhi Zonal Unit to conduct the search? Ans:-No, as I am not in the search team. Que:-I am producing before you this day a copy of the 'panchanama' drawn by you, does it have your signature on the same? Ans:You are unable to produce any 'panchanama' drawn by me on 15.11.2016. Que: How many officers of DRI, Kolkata and Delhi Zonal Unit to conduct the search which started at 14:00 Hrs. on 12.03.14 at M/s Magna Projects (P) Ltd.? Ans:- I did not know as I am not in the search team." 12.2. From the above, it transpires 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 operatio....
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....ank of India, from time to time and abetted in the act of smuggling of the gold. Thus Sri Ajit Shinde, noticee no.7, is liable for penal action under section 112 (b) ibid for his act or omission for the seized goods mentioned above are liable to be prosecuted u/s 135 ibid." (Emphasis supplied) 12.5. From the above findings recorded by the Ld. adjudicating authority, we observe that no direct evidence as to the involvement of Shri Ajit Shinde has been put forward by the Investigation. Thus, we are of the opinion that there is no evidence available on record to implicate the appellant no. 1 in the alleged smuggling activity of gold. 12.6. In view of the above discussion, 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. 13. Regarding the appellant no. 2, viz. Shri Chetan Palgota,....