TaxTMI 
TaxTMI 
2026 (1) TMI 174
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.... 02/CUS/CC(P)/WB/2021-22 dated 28.01.2022 passed by the Commissioner of Customs (Preventive), West Bengal, Kolkata, Custom House, 3rd Floor, 15/1, Strand Road, Kolkata. 2. The facts of the case are that on 05.10.2016, one Ratan Biswas was apprehended by DRI, Kolkata at Sealdah Railway Station and recovered 33 pieces of foreign marked Gold Biscuits weighing in total 3632.140 gms. from his possession. Accordingly, he was apprehended on the reasonable belief that the he was transporting the said gold pieces without any valid documents for licit purchase of the same. During the course of interrogation, Shri. Ratan Biswas in his statement named the present appellant i.e. Shir Dharanidhar Ghosh as the person who handed him over the said Gold B....
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....ith remark that "This order will, however, not prevent the authorities from proceeding afresh in accordance with law, against the petitioner." 2.4. During the course of denovo adjudication, cross-examination of Ratan Biswas was held on 14.12.2021 wherein he reiterated that the gold was given to him by Shri Dharanidhar Ghosh i.e. the appellant herein. 2.5. The Ld. Commissioner of Customs (Prev.), WB, Kolkata i.e. the respondent herein passed the Adjudication Order dated 28.01.2022, wherein he has inter alia imposed a penalty of Rs. 50 lakh upon the present appellant under Section 112(b) of the Customs Act, 1962. The appellant has filed this appeal before this Tribunal against the penalty imposed on him. 3. The Appellant submits that....
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....y proceeded to impose penalty upon him, which is bad in law. 3.3. The Appellant submits that imposition of penalty solely on the basis of statement of coaccused without any corroborative evidence, is not maintainable under the Customs Act, 1962. In the present case, there is no evidence on-record corroborating the statement of the co-accused Shri Ratan Biswas to implicate him in the alleged offence. Thus, the Appellant submits that the penalty imposed on him is not maintainable in law. In this regard, reliance is placed upon the following decisions: 1. 2007 (220) ELT 3(S.C.) Para 16 2. 2008 (223) ELT 619 (Tri-Del) - Para 4 read with 2010 (260) ELT 180 (Del.) 3. 2014 (301) LT 170 (P&H) Para 17 ....
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.... of the above submissions the Appellant prayed for setting aside the penalty imposed on him. 4. The Ld. A.R. submitted that Shri. Ratan Biswas in his statement categorically stated that the Appellant was the person who handed over the gold pieces to him. He reiterated his statement during the course of cross-examination of Ratan Biswas held on 14.12.2021. Thus, the Ld. adjudicating authority has rightly imposed penalty on the appellant for abetting the offence of smuggling of the gold pieces. 5. Heard both sides and perused the appeal documents. 6. We observe that the present appeal has been filed by the Appellant against the penalty of Rs.50,00,000/- imposed on him in the impugned order. It is on record that the gold was recovered....
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....as concluded that the said mobile number was used by the appellant and arbitrarily proceeded to impose penalty upon him. 6.3. From the statement of Shri. Ratan Biswas, we observe that he has named the present appellant as the person who handed him over the said Gold Biscuits for delivery to one Sourav at Burrabazar, Sonapatty. But, the Investigation has not found out Shri Sourav who was said to be the receiver of the gold as per the statement of Shri. Ratan Biswas. Thus, we observe that the investigation has not substantiated the statement of the co-accused Shri. Ratan Biswas with any corroborative evidence. Hence, we hold that in the absence of any independent corroboration, such an exculpatory statement of the co-accused cannot the sol....
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....r Section 108 of the Act against the coaccused with a weak type of evidence and conviction of co-accused cannot be based on the uncorroborated statement of co-accused. (iv) AnisurRahaman v. Commissioner of Customs (Prev.), West Bengal - 2003 (160) E.L.T. 816 (Tri. - Kolkata). Non-appearance before DRI Officer in response to summons is not a ground for holding that the appellant is guilty - The entire case is based upon the statement of the Driver which is in the nature of uncorroborated statement of a co-accused and cannot be made the sole basis for penalizing the appellant. (v) Jahed Mondal v. Commissioner of Customs (Prev.), West Bengal - 2002 (149) E.L.T. 319 (Tri. - Kol.) = 2002 taxmann.com 1885 (CEGAT - Kol.) (Para....