A Single Member Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata Bench quashed penalty under Customs Act on absence of independent corroborative evidence.
The first three Appellants viz. 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.
The Appellants denied the allegation of recovery of gold from their possession, hence it was incumbent upon the Revenue to produce the Panch witnesses for cross examination to unearth the facts before the Adjudicating authority. In other words, it was for the Revenue to establish the fact of recovery of contraband from the possession of the two of the Appellants.
In the present case, admittedly, the cause of action arose on 06.03.2017 but no show cause Notice under Section 124 of Customs Act, 1962 was issued within three months from such date. The Show Cause Notice was issued only on 05.09.2017 i.e. much beyond the period of such three months.
Further, on a specific query, it was confirmed by the Revenue before the Tribunal that no one month’s previous notice was also issued to the first three Appellants before contemplation of the proceeding under Section 124 of the Customs Act against them.
The Tribunal of P K Choudhary, Judicial Member observed that “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.”
“In view of the above discussions and findings, I set aside the respective penalties as imposed upon the four Appellants herein under Section 112(b) and/or 112(a) & (b) of Customs Act, 1962 under the impugned Order-in-Original as confirmed by the impugned Order-in Appeal” the Tribunal said.
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