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2022 (9) TMI 1224 - AT - CustomsPenalty u/s 112(b)(i) of the Customs Act 1962 - smuggling - Gold Bars - reliability of statements of persons recorded in impugned matter - HELD THAT:- Upon perusal of these statements nowhere it has been found that the Appellant had knowledge about the use of fund in smuggling of gold. It is admitted fact that Appellant has financed the fund against the security of blank cheques and amount financed in June 2014 was also adjusted by the Appellant against the purchase of one plot in Akshar Industrial Estate, Ahmedabad from Shri Rutugna Trivedi. Detail of the said transaction alongwith ledger also submitted by the Appellant to the investigation authority during the investigation. From the evidence available on record and statement of Appellant it is clear that he was engaged in normal course of his business of lending the fund. The business activity of financing of fund has been turned by the Ld. Commissioner into direct participation in the conspiracy to smuggle gold. For imposition of penalty under Section 112(b) of the Customs Act, 1962 the knowledge on the part of the person has to be established. From the above statement of Appellant it is also clear that he had not confessed in his statement that he had knowledge about use of the funds provided to Shri Rutugna for alleged smuggling of gold activity. 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 with material particulars by independent evidence. The statement of co-accused cannot be used against the appellant, particularly when appellant has denied his involvement in respect of the goods in question - 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. Appeal allowed - decided in favor of appellant.
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