TaxTMI 
TaxTMI 
2026 (9) TMI 963
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....oner in the impugned order while absolutely confiscating 20kgs of gold bars and also demanding duty on the gold smuggled for the earlier period-imposed penalties on various persons but refrained from imposing penalty on Shri. C. Madhavan, Deputy Commissioner of Customs retired and Shri. Anil Kumar Assistant Commissioner of Customs. Aggrieved with non-imposition of penalty on the above two officers the revenue is in appeal before us. 3. The Authorized Representative submitted that CBI's reference dated 26.02.2014 consequent to their investigation, inter alia, communicating Shri. C. Madhavan, Deputy Commissioner of Customs's role in the smooth passage of the smugglers, his regular telephonic interactions with Shri. Faiz, the receipt of cash, television sets and tread mill from him by S/Shri. C. Madhavan and Anil Kumar and the recovery of goods from them by CBI as evidences in this case; it is submitted that the receipt of cash, television sets and tread mill from Shri Faiz by S/Shri C. Madhavan and Anil Kumar, misusing their official capacity, was mainly towards facilitating gold smuggling. Therefore, according to the Revenue, the adjudicating authority had failed to note ....
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....volved in any smuggling operations nor facilitated any smuggling of the gold the Commissioner was right in not imposing penalty on him. He also submits that the statement recorded by CBI under Section 161 Cr.P.C. without any corroborating evidences has no evidentiary value under the provisions of Customs Act, 1962. He relies on the following decisions: • Arvind Kumar vs. CC., New Delhi 2001 (136) ELT 439 (Tri. - Del.) • Dhananjay N Khalwadekar vs. CC (Prev.) Mumbai 2003 (156) ELT 888 (Tri. -Mumbai) • Arif Shaikh vs. CC (Gen.) Mumbai 2011 (272) ELT 596 (Tri. -Mumbai) 4.1 In support of Shri Anil Kumar it is submitted that there was no allegation in the show-cause notice about any specific activity which enabled smuggling of gold. The only allegation is he had taken a loan from Shri. T.K. Fiaz which is credited to his bank account which he had done in good faith anticipating its intimation to department and subsequent return of the loan. The genuineness of the officer is known from the fact that when the investigations were on, he volunteered to appear before the authorities concerned and informed that about the loan. The Commissioner in the i....
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....f noticees (1), (2) and (3). Permission for cross examining the following persons the officers was rejected." 5.3 Based on the above the Commissioner in the impugned order observes as follows: "The allegations regarding Shri. Madhavan maintaining close acquaintance with Shri. Faiz is not in dispute as this has been accepted by both of them. Shri. Madhavan has also accepted, both in his statement under Section 108 of Customs Act, 1962, as well as in his reply to show cause notice and argument note, that he had introduced Shri. Faiz to Sri. Sunil Kumar and directed that Shri. Faiz be assisted whenever he arrived at airport for treatment of his child. However, Shri. Madhavan has denied the allegation that he was party to unhindered clearance of passengers smuggling in gold. Neither Shri. Faiz nor Shri. Sunil Kumar have stated that Shri. Madhavan had directed easy and unhindered clearance of S/smt. Asifa, Arifa and Haris Abdul Rahman on any occasion. The only reference to Shri. Madhavan had come in the statement of Shri. Faiz on 22.9.2013 when Shri. Faiz stated that he was introduced to Shri. Sunil Kumar by Shri. Madhavan but neither S/Shri. Madhavan nor Sunil Kuma....
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.... taken wherein he had admitted to receiving Rs. 5 lakhs from Shri. Faiz as a loan and the report from CBI mentions that Shri. Faiz gifted a 42" LED television and treadmill to Anil Kumar. 6.1 The Commissioner in the impugned order notes that Shri Anil Kumar in his reply to show cause notice had submitted that he was introduced to Shri. Faiz by a senior officer of the department and hence his credibility was not doubted; further there were no intelligence reports from any formation/unit about activities of Shri. Faiz relating to smuggling of gold. He had taken a loan of Rs. 5 lakhs from Shri. Faiz to meet the expenses incurred for his wedding, Shri. Faiz had also gifted him with a 42" television set as wedding gift; the loan was received by him into his salary account maintained with bank and he was planning to repay the same with interest. When he learnt about involvement of Shri. Faiz in smuggling operations he had voluntarily informed CBI about the said loan. He had not given any directions to any officer to facilitate visits of Shri. Faiz or anyone recommended by him; he had not contributed in any way to unhindered clearance of passengers who smuggled in gold on 20.8.13 and 2....
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....discussions, we do not find any other reasons forth coming in the grounds of appeal filed by the revenue to counter the above observations of the Commissioner in the impugned order. Hence, we do not find any merit in the appeal filed by the Revenue. 7.1 It is pertinent to mention that this Tribunal vide Final Order No. 20121-20127/2022 dated 29.03.2022 had allowed the appeals filed by Shri. Sunil Kumar, Shri. Shanavas M, Shri. Subair Kallungal, Shri. Ashruf Kallungal, Shri. Faizal, Shri. Faiz, Shri. Koodakkara on whom various penalties were imposed. Against this order an appeal was filed by the revenue with the Hon'ble High Court of Kerala and vide order dated 19.12.2025 "21. The last issue arising for consideration is as to whether the steps under Section 112(b) of the Act could be taken against a person without actual seizure of the gold allegedly smuggled. Here, the adjudication on the afore question requires to be made, after noticing that the proceedings have been taken against the respondents herein solely on the basis of the statements recorded under Section 108 of the Act. In answer to the first question framed as above, we have already found that the statements....