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2023 (8) TMI 359 - AT - CustomsLevy of penalty u/s 112 (b) of the Customs Act, 1962 - Smuggling - gold biscuits of foreign origin - demand merely on the basis of the statements of the employees of the appellant - existence of corroborative evidences or not - HELD THAT:- The similar issue has been examined by the judicial pronouncement in RAMCHANDRA VERSUS COLLECTOR OF CUSTOMS [1991 (9) TMI 206 - CEGAT, NEW DELHI], wherein this Tribunal has observed no sale has been established, identity of the buyer and seller has not been established. As a consequence, the currency cannot be considered to represent the sale proceeds of the contraband goods and, therefore, no violation of Section 121 has been made out. Since the charge under Section 121 of the Customs Act has not been proved against the appellant the currency notes cannot be retained by the Department and have to be returned to the appellant. Imposition of penalty is also not legal and proper in the absence of proof of violation of any provisions of the Customs Act. Further, in the case of SHRI HEM RAJ SONI, S/O SHRI HEERA LAL AND SHRI DWARKA DASS, S/O SHRI POKAR DASS VERSUS CCE, JAIPUR [2014 (5) TMI 88 - CESTAT NEW DELHI], this Tribunal has observedThe contention of the Revenue that they are competent to confiscate the sale proceeds of the smuggled goods under Section 121 of the Customs Act is wholly fallacious. Thus, no evidence has been adduced against the appellant for involvement in the activity of smuggled gold and no cogent evidence has been produced apart from the statements recorded during the course of investigation that the appellant was involved in the activity of smuggled gold and cash recovered during search was the sale proceeds of smuggled gold. Therefore, the penalty on the appellant is not imposable. In the light of the above observations by the Hon’ble High Court of Punjab & Haryana in M/S G-TECH INDUSTRIES VERSUS UNION OF INDIA AND ANOTHER [2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT], it is held that as the statements which have been relied upon the adjudicating authority have not been examined in terms of Section 138 (B) of the Customs Act, 1962, therefore, the said statement cannot be relied upon to impose penalty on the appellant. Thus, in the facts and circumstances of the case, there is no evidence available against the appellant to impose penalty under Section 112(b) of the Customs Act, 1962 on the appellant. Therefore, the penalty imposed on the appellant is set aside - appeal allowed.
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