TMI Blog2017 (2) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... t for imposition of penalty indicating any knowledge or mens rea - it would be in the interest of justice if the matter is remanded back for de-novo adjudication after complying with the principles of natural justice - appeal allowed by way of remand. - C/86071/13 - A/85417/17/CB - Dated:- 10-11-2016 - Mr. M. V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Prasad Paranjape, Advocate for appellant Shri Ahibaran, Addl. Commr (AR) for respondent ORDER Per M. V. Ravindran This appeal is directed against Order-in-Original dated 31.01.2002 to the extent it imposes penalty of ₹ 1,00,000/- under Sections112(a) and / or 112(b) of the Customs Act, 1962 on the Appellant. 2. In this matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epeated opportunities, even now, only an office note could be produced to show only intent of displaying the Order-in-Original on Notice Board. One of the Brother Members, who passed the said Order in the case of Applicant's son, himself directed the department to produce proof of service on pointing out these facts. We are thus convinced that the fact situation in the case of the Applicant is different from the case of Shri Nitesh Sadarangani, and as agreed by the department, he can be granted an opportunity to press his case in his appeal, but on payment of some cost. The Hon'ble Bombay High Court in Navbharat Enterprises Ltd (supra) observed that- 7. Even the Tribunal, therefore, does not refer to the delay of more than 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een evidenced by his passport issued on 2.4.2001 in London. No reply to show cause notice could therefore be filed by the Appellant or his son. The appeal was filed by son of the appellant without filing any application for condonation of delay and the same was dismissed as time barred. This appeal filed by the appellant however was filed with an application for condonation of delay which was allowed subject to payment of cost. The cost of ₹ 5,000/- has been paid by the Appellant. Thus, the appeal was taken up for hearing. We have heard both sides. 4. In the impugned Order the following specific findings are recorded against the Appellant in para 82 while dealing with penal liabilities of each of the Noticee - 3. SHRI ASHOK S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offer himself for examination before the adjudicating authority. Barring these statements, no other material has been relied upon against the Appellant. 7. We have also perused the gist of the statements of these three persons as recorded in the impugned Order. 7.1 Regarding the statement dated 17.10.2000 of Shri Shailesh Shah the gist thereof as recorded in the impugned Order reads as under- 15. Statement of Shri Shailesh K. Thakkar, Stores-In-Charge of M/s. Prabhu Hira Ice and Cold Storage Ltd., New Mumbai was recorded on 17/10/2000, wherein he inter alia stated that on 10/10/2000, one of his regular clients Shri Rajesh Bhagia of M/s. Kashmir Fruits informed him that one of his friends Shri Nitesh Ashok Sadarangani had cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Statement of Shri Rajesh H. Bhagia, of M/s. Kashmir Fruit Co. Vashi was recorded on 19/10/2000, wherein he intcr alia stated that on 10/10/2000 he took Shri Nitesh Ashok Sadarangani to Prabhu Hira Warehouse, APMC Market, Turbhe, Vashi and introduced him to Shailesh Thakkar; that Nitesh informed Shailesh that he wanted to store biscuits and chocolate imported by them and he also told that the container contained Chocolates, biscuits and cigarettes; that Shri Shailesh told Shri Nitesh that they could not store cigarettes in the warehouse to which Shri Nitesh told that they wanted to carry out the crossing /transfer of goods from the container and assured Shri Shailesh that they would transfer the goods as early as possible; that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e saw cartons of foreign origin containing cigarettes and biscuits and cookies: were being unloaded from the container that Nitesh was busy in re-packing 710 cigarette cartons in gunny bags. Even this gist of statement do not disclose any act of omission or commission by the Appellant to render any goods liable to confiscation. This statement do not indicate any knowledge or mens rea so far as the appellant is concerned. This gist of statement neither shows that the appellant came along with the trailer for its destuffing, nor does it show that the appellant was in any manner knowingly concerned with re-packing of 710 cigarette cartons in gunny bags. 7.4 We are convinced that merely from gist of these statements not even any prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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