TMI Blog2016 (3) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ies imposed on Shri Balwinder Arora needs to be reconsidered by the adjudicating authority, as it is found from the show-cause notice that there is a proposition to impose penalty under Section 114(i) and 114(iii) of the Customs Act, 1962. Also the provisions of Section 138B of the Customs Act, 1962 needs to be followed in its letter and sprit by the adjudicating authority before coming to a conclusion. The provisions of Section 138B of Customs Act. The cross-examination sought by other appellants should have been granted in order to arrive at a correct conclusion as to of the appellants were aware of the facts or otherwise. - Matter remanded back - Appeal No. C/960 to 966/12 and C/1006/12 - Order No. A/86716-86723/16/CB - Dated:- 22-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iphode, appeared for other seven appellants. Shri V.K. Singh, Spl. Counsel appeared for Revenue. 4. Learned Counsel Shri S.N. Kantawalla would draw our attention to the show-cause notice, order-in-original and the findings recorded by the adjudicating authority to come to a conclusion that appellants are liable to be penalized under the said provision. He would submit that subsequently after two months of passing of order-in-original, the adjudicating authority has issued a corrigendum to the order-in-original by incorporating that the penalty imposed on M/s Prima Trading Co., is also under Section 114(i) of the Customs Act, 1962 along with penalties under Section 114AA. He would draw our attention to the paragraph No. 95(a) and submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 6.1 As regards the penalty imposed on Ms Preeti Dinesh Shah (C/965/12), it is his submissions that in the statement recorded it is very clear that she is a sleeping Director/partner of the Intensive Agri Development Pvt. Ltd., hence no active role can be attributed to these two persons for imposition of penalties under Section 114AA of the Customs Act, 1962. 6.2 As regards penalty imposed on other appellants it is his submission that the findings of the authority are very sketchy and are totally incorrect inasmuch as the penalties had to be imposed on these appellants is based upon the statement recorded on Shri Balwinder Arora which indicates / implicates these appellants by stating that these people were aware that Shri Balw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptance by Shri Balwinder Arora that all these appellants were aware of the fact that potassium chloride was being exported under the curb of calcium chloride , hence penalties imposed are correct. 7. We have considered the submissions made at length by both the sides and perused the records. 8. As regards the penalties imposed on Shri Babulal Shantilal Shah and Ms. Preeti Dinesh Shah we find from the records that both these appellants have categorically stated in their statements that they were not engaged in day to day working of the Company as its Directors or partners. This factual aspect has not been considered in right perspective by the adjudicating authority not contradicted in the impugned order. Since both the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE Delhi v. Kuber Tobacco India Ltd. in Final Order No. 50938-50942/2016 dated 04.03.2015 has considered the provisions of Section 9B and Section 138B of the Central Excise Act and Customs Act as regards the examination and cross-examination of the persons making statement. After following the law as laid down in final order No.50938 50942/2016 the Tribunal recorded as under:- 14. In view of the above anaylsis, it is clear that during adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be cross examined in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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