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2017 (5) TMI 1438 - AT - CustomsPenalty u/s 114 (iii) of CA, 1962 - DEPB-cum-drawback scheme for export of silk tops - mis-declaration of goods - act/omission during the course of their performance as customs officers, dealing with export cargo - Held that: - to impose penalty u/s 114 (iii) on the officers of customs, it is necessary to establish with supporting evidence, a positive act on the part of the officers to abet a omission or an act of another person which will render the connected goods liable for confiscation u/s 113. Failure, if any, in discharge of duty assigned or negligence on the part of the Custom Officer by itself cannot bring in penal consequence in terms of the said section. It is apparent that in the absence of documents based on which allegations were made, the whole proceedings against the appellants become seriously jeopardized. The attempt by the Original Authority to rely on certain incidental and collateral evidence is also not found sustainable. None of these evidences will lead to the conclusion based on “preponderance of probability” as stated by the Original Authority. Even for such preponderance of probability evidences are required. The presumptions and possible inferences by deciding authority cannot substitute evidences. There is no sustainable ground to impose penalties u/s 114 on the appellants in the present case - appeal allowed - decided in favor of appellant.
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