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TMI Blog2019 (8) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... alty imposed on each of the appellants in proceedings that were initiated against M/s Lord Empire International for illicit clearance of 'brass scrap' and 'copper scrap' by claiming the benefit of exemption in notification no. 43/02-Cus dated 19 April 2002 against fraudulently obtained 'advance licence' with intent to divert for sale instead of utilisation in manufacture, are disposed off by this common order. 2. The importer on record is not in appeal and, thereby, findings of the adjudicating authority on the leviability of duty and confiscation of goods is not under challenge. Nevertheless, it would be worthwhile to record, in brief, the facts of the case. In the impugned order, it has been held that, with intent to divert goods importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid show cause notice, as well as the notice itself, did not name Shri Sajjan Kumar Goel. 4. That was to come later after his interception and arrest in April 2008. From his deposition and that of the other individuals named in the notice, it was alleged that he had not only invested substantial sums of money in the consignments that had since been detained but was directly concerned with the clearance of the goods as well as the diversion. Thereafter, on 27th May 2009 an addendum was issued to the show cause notice charging him with complicity in the import and diversion of the impugned goods. 5. We have heard Learned Counsel for the appellants and Learned Authorised Representative at length. As the duty liability and confiscation is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udulently obtained advance licences purportedly for manufacture and export. The adjudicating authority has held that the principal conspirator in this attempt to defraud public revenue is Shri Sajjan Kumar Goel with the others having been his witting instruments. The plea of the former is that he is a lender of funds without any knowledge of the scheme hatched for evasion of duties of customs. Undoubtedly, an ordinary financier, without any benefit other than interest, cannot be held to be a contributory to contraventions calling for confiscation of the goods. The identification of circumstances of involvement of Shri Goel, if ascertained to be correct, would alter the hierarchy of involvement and the consequences thereof. It would, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) ELT 533 (P&H)], contends that, even if there is no special limitation prescribed in section 112 of Customs Act, 1962, recourse can be had to imposition of penalty only within a reasonable time of commission of the alleged offence. He also assailed the casual discarding of the findings of the Income Tax Appellate Tribunal on the very issue of money having been lent to the other noticees. 9. Countering these claims, Learned Authorised Representative places reliance on the decision of the Hon'ble Supreme Court in Surjeet Singh Chhabra v. Union of India [1997 (89) ELT 646 (SC)] which has held that '3....It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goel, as the prime conspirator, is based on a confession recorded from him as well as the corroboration of the confession from the other noticees. It is also on record that the show cause notice, as originally issued, did not include him as a noticee and has no mention of him anywhere within. The corroboration of the confession is, therefore, inconsistent with statements recorded before the confession obtained from Shri Goel. It is only with a reconciliation of the inconsistency that the corroborative statements could be acceptable for recording a finding. Such a reconciliation is markedly absent in the impugned order. It would be in the natural order of human behaviour to pass the buck to conveniently available individual. The convenience ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the leap to isolation of the prime mover in the conspiracy being in jeopardy, it would be appropriate for the adjudicating authority to apply its mind to the various challenges made by Shri Goel before us to come to a conclusion on the nature of his role in the act of smuggling. The determination of such a role would have a direct impact on the contributory aspects of S/Shri Surender Agarwal, Bhagwan Tulsiyan and Suresh Khandelwal. 14. To enable this, we set aside the impugned order and direct the adjudicating authority to decide afresh the submissions of the four above in response to the show cause notice to the extent that we have not ruled upon. 15. The appeals of S/Shri Gulbir Singh Anand and Naresh D Bhanushali are allowed by sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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