Amit Ghosh Vs Commissioner of Customs (CESTAT Kolkata)
CESTAT Kolkata held that imposition of penalty under section 112(a) & (b) of the Customs Act, 1962 on the basis of retracted statement and in absence of any independent corroborative evidence unsustainable in law.
Facts- Three appellants i.e. Amit Ghosh, Ajay Kr. Gond and Sanjay Gond were all working as Havalders of Customs at NSCBI Airport, Kolkata said three Appellants were intercepted together at Netaji Subhash Chandra Bose International Airport (NSCBI) Airport, by the Officers of Directorate of Revenue Intelligence, when they allegedly named the fourth Appellant viz. Akash Jagdish Issrani who was then intercepted from a Mumbai bound flight and there was alleged recovery and seizure of 2 pcs. of gold weighing 1000 gms.
Before the adjudicating authority, the first three Appellants denied recovery of gold from their possession and demanded cross-examination of the panch witnesses. They also pleaded that since the authority failed to comply with the provision of Section 155(2) of Customs Act, 1962, the proceeding against them should be dropped/ quashed. They placed reliance upon various judicial pronouncements in this regard. The fourth Appellant demanded cross-examination of first three Appellants herein on the ground that apart from statements of the said three co-accused, there is nothing on- record to implicate him in the present case. The Adjudicating authority vide Order in Original ordered for absolute confiscation of the seized gold and Indian Cash Currency and though dropped proceeding against other noticees, imposed penalties, as indicated hereinbefore, upon the present Appellants. The Commissioner (Appeals) upheld findings of the Adjudicating Authority. Hence, the present appeals praying for setting aside of the respective penalty upon the Appellants.
Conclusion- Held that the imposition of penalty upon the fourth Appellant under Section 112(a) & (b) of the Customs Act, 1962 on the basis of retracted initial statements all dated 07.03.2017 of the first three Appellants herein, is also perverse in nature inasmuch as apart from such retracted statements of the co-accused, there is nothing on-record to implicate the fourth accused in the alleged act of smuggling of the seized gold. Hence, in absence of any independent corroborative evidence against the fourth Appellant, penalty upon him is not imposable.
Further, single penalty under both the clauses (a) & (b) of Section 112 of Customs Act, 1962, is erroneous in law in as much as both such clauses operates at separate domain altogether. While clause (a) of Section 112 ibid prescribes penalty for the act of commission and/or omission in illegal import and/or abetment thereto, clause (b) thereof prescribes penalty for knowingly dealing with the illegally imported goods. As such, imposition of single penalty upon the fourth Appellant i.e. Akash Jagdish Issrani by the Adjudicating authority under both clauses (a) and (b) supports the contention on behalf of the said Appellant that the Adjudicating authority was not sure about the alleged role of the said Appellant in the alleged act in want of specific allegations against him in the Show Cause Notice, but mechanically imposed the penalty on him. Such imposition of penalty is liable to be quashed.
FULL TEXT OF THE CESTAT KOLKATA ORDER
All the four Appellants are in Appeal against the common Order-in-Appeal No. KOL/ CUS/ CCP/ AKR/ 134-137/ 2022 dated 07.03.2022 passed by the Commissioner of Customs (Appeals), Kolkata thereby upholding the common Order-in-Original No. 27/ ADC(P)/ CUS/ WB/ 21-22 dated 29.06.2021 passed by the Additional Commissioner of Customs (Preventive), Kolkata imposing respective penalties upon the appellants herein:
