TaxTMI 
TaxTMI 
2026 (9) TMI 1766
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.... the Order-in-Original No. KOL/CUS/JC/AP/ADMN/37/ 2023 dated 12.07.2023, wherein, inter alia, a penalty of Rs.50,000/- has been imposed on Shri. Rakesh Kumar Roshan, the Appellant herein. 2. The facts of the case are that two passengers, by name Shri Sagar Chakraborty and Shri Sunil Mahato, were intercepted at the departure area of the Netaji Subhas Chandra Bose International Airport, Kolkata, when they were scheduled to depart from Kolkata to Dubai by Flight No. FZ-460 on the intervening night of 01/02.10.2021. On examination, they were found to be carrying a substantial quantity of foreign currency in contravention of the applicable provisions of law. The officers recovered a total of 3,55,000 Saudi Arabian Riyals (710 pieces of denomi....
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....rdingly, the show cause notice issued proposed imposition of penalty on the Appellant herein. 2.2. On adjudication, the Ld. Adjudicating authority, has inter alia, imposed a penalty of Rs.50,000/- on the Appellant. On appeal, the Ld. Commissioner (Appeals) has upheld the penalty imposed on the appellant. 3. The Ld. Counsel appeared on behalf of the Appellant made the following submissions: 3.1. No positive act of facilitation is established. The Appellant, in the ordinary discharge of his duty, checked the boarding pass of Shri Mahato, found no baggage tag affixed, and was told by the passenger that he carried no check-in baggage. The passenger's handbag was examined in the presence of the Superintendent and other officers and ....
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....ssage is inadmissible in evidence. Reliance has been placed by the Departments below on a printout of a text message allegedly sent by the Appellant, recovered from the co-noticee's phone. No Section 138C(2) certificate (pari materia with Section 65B, Evidence Act) accompanies this electronic record, nor is there any forensic report linking the message to a device used by the Appellant. In the absence of the mandatory certificate, such secondary electronic evidence is wholly inadmissible: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473; S.N. Agrotech v. Commissioner of Customs, 2018 (361) ELT 761 (Tri-Del), holding Section 138C of the Customs Act to be pari materia with Section 65B of the Evidence Act. The findings below, being founded on....
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....dmissible material, without a shred of independent corroboration, and have failed to establish the essential ingredients of abetment under Section 114 of the Customs Act, 1962. Accordingly, the Ld. Counsel submits that the impugned Order-in-Appeal, to the extent it confirms the penalty of Rs. 50,000/- on the Appellant, is unsustainable in law and on facts. 4. The Ld. A.R. submits that the evidence gathered during the course of investigation has established that the Appellant has facilitated the passengers in carrying the Foreign Currencies, even when they knew that the said passengers were carrying foreign currencies. Accordingly, the Ld. Counsel supported the imposition of penalty on the Appellant in the impugned order. 5. Heard both....
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....e statement of a co-noticee, without independent corroboration, cannot be acted upon to fasten penal liability. In support of this view, we rely on the decision in the case of Supdt. of Customs v. Bhanabhai K. Patel, 1995 (76) ELT 508 (SC); Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39; Rajendra Prasad v. Commissioner of Customs, 2001 (139) ELT 925 (T). 6.2. It is settled law that failure to attain the highest standard of efficiency does not ipso facto constitute misconduct. This view has been held in the case of J. Ahmed v. State, AIR 1979 SC 1022. Likewise, mere negligence for want of diligence on the part of a Customs officer does not ipso facto render the act culpable so as to invite penal consequence, as held by the Tr....
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....st the Appellant has been sustained in the impugned order on the basis of suspicion only. It is a trite that suspicion cannot take the place of proof, and that circumstantial evidence must exclude every hypothesis except guilt. This view has been held in the case of Hanumant Govind v. State of M.P., AIR 1952 SC 343 and Rahaman v. State of U.P., AIR 1972 SC 110. Further, we observe that abetment requires proof of intentional aiding with active complicity - mere facilitation in fact, without intent, is insufficient. This view has been held in the case of Shri Ram v. State of U.P., AIR 1975 SC 175. We observe that no such intentional, active complicity is established against the Appellant in this case. Accordingly, we hold that the allegation ....