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2022 (8) TMI 617 - AT - CustomsLevy of penalty u/s 112(b)(i) of the Customs Act 1962 - smuggling of Gold activity - reliability of statements - request for cross examination rejected - HELD THAT:- The role of the Appellant in the whole episode has been derived only from the statement of Ms. DivyaKishorBhundia only Statement of said person remained uncorroborated during the investigation. As per the department Shri Rutugna being the mastermind of the smuggling racket, however during the investigation Shri Rutugna has nowhere stated the name of Appellant as connected to his alleged activity of smuggling of gold - Upon perusal of the statements, it is nowhere found that the Appellant had knowledge about the said alleged smuggling of gold activity. The department except the statement of Ms.Divya Kishore Bhundia nowhere produce any evidences to show that Appellant was involved in smuggling gold activity. The Department has not taken any steps to confirm with Shri Rutugna whether the Appellant also involved with him. The evidence on record is not sufficient to hold that the appellant was involved in alleged activity of smuggling of gold - It is well settled law that the statements of the co-noticee cannot be adopted as a legal evidence to penalize the accused unless the same are corroborated in material particulars by independent evidence. The statement of co-accused cannot be relied upon, particularly when appellant has denied his involvement in respect of the goods in question. There is absolutely no evidence on record connecting the appellant with the commission of any offence in relation to the alleged gold smuggling activity. Merely because the Appellant is engaged in the business of Gold and Silver, that would not ipso facto make the appellant in any way privy to the commission of any offence with reference to the alleged gold smuggling activity - there is absolutely no evidence on record connecting the appellant with the commission of any offence in relation to the alleged gold smuggling activity. Merely because the Appellant is engaged in the business of Gold and Silver, that would not ipso facto make the appellant in any way privy to the commission of any offence with reference to the alleged gold smuggling activity. The appellant cannot come within the ambit of Section 112(b) because appellants had never acquired possession or in any way concerned in any of the activities mentioned in the Section or any measure dealing with any goods which the appellants knew or had reason to believe are liable to confiscation. In the absence of the department having proved the knowledge of the appellant in the activities relating to the smuggled gold, there were no grounds for imposition of penalty on him - It is now well established that mensrea is an important ingredient for imposing a penalty on the persons enumerated in Section 112(b) of the Customs Act. The evidence brought out by the department nowhere suggests that the appellant was aware that the goods in question were smuggled into the India. The penalty imposed on Appellant, therefore, cannot be sustained. The appellant is not liable for imposition of penalty under Section 112(b) of the Customs Act, 1962 - Appeal allowed - decided in favor of appellant.
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