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2022 (12) TMI 485 - AT - CustomsReduction in the quantum of penalty - import of gold jewellery from Thailand without payment of Basic Custom Duty of 10% by misusing the benefit of exemption notification No.85/2004-Cus. Dated 31.08.2004 read with Notification No.101/2004-Cus. (NT) dated 31.08.2004 - resignation of the director on whom penalty was imposed - existence of mens rea or not - HELD THAT:- Although initially seven (7) Bills of entry were in issue but at the Adjudication level only on the basis of one Bill of entry dated 23.3.2009 penalty has been imposed on the appellant herein under Sections 112(a) & (b) and 114AA Customs Act without there being any finding of any mens rea on his part. The penalty has been imposed only on the basis that he was one of the Directors of M/s. Damasy Retail Jewellery Pvt. Ltd. at the relevant point of time. A perusal of the show cause notice suggest that suppression, mis-statement etc. everything has been attributed to M/s. Damasy Retail Jewellery Pvt. Ltd. but in the said show cause notice there is no whisper about any suppression or misstatement or abatement on the part of the appellant. No role has been assigned or alleged against the appellant there in the Show-cause notice. He has been penalized merely because he was the Director of the company during the relevant period. But both the authorities below have overlooked one fact that in his resignation letter dated 28.11.2008 while resigning from the post of country head, the appellant has specifically mentioned therein that he would not take any decisions after 30.11.2008 which in other words means that after that date he would not participate actively in any manner in the affairs of the company. Had the resignation been not there, still the department has failed to bring out any evidence on record suggesting any active role of the appellant in that single import/bill of entry in issue. It has not been established anywhere that the appellant is the beneficiary or has gained anything out of the import. The orders merely proceed on speculations as it uses the terms like ‘the appellant must have experience’ or ‘must have been aware’. No penalty or conviction can be based merely on speculations. There has to be some role assigned to that person corroborated by some concrete evidence on record. In my view no one can be penalised merely on the basis of speculations/doubt. It is settled principle that the order needs to be passed within a reasonable period after the conclusion of hearing and the circular dated 05.08.2003 issued by Ministry of Finance, Deptt. of Revenue, Central Board of Excise & Customs, as placed on record by the learned counsel, specifically laid down the time period to a maximum of one month for issuance of order from the date of conclusion of hearing. Same time limit of one month has been reiterated in the later Circular No. 1053/02/2017-CX dated 10.03.2017 and in latest instruction dated 18.11.2021 issued by Ministry of Finance, Department of Revenue it has been emphasised that instructions issued vide Master Circular dated 10.03.2017 should be adhere to - The Hon'ble Supreme Court in catena of decisions has laid down that an undue delay between conclusion of the arguments and delivery of judgement shakes the confidence of people in judicial system and affects the right of the parties. The impugned order is liable to be set aside - Appeal allowed.
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