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(vii). Commissioner of Customs (Prev.) Kolkata Vs Ashok Kumar Agarwal, 2017 (348) ELT 555 (Tri. Kolkata) Customs Appeal Nos.77029, 77004-77007 of 2018

5. Shri Anurag Kumar Jalan ( appeal No C/77029 /2018) submits that Because there is blatant violation of principle of Natural Justice, equity and fair play and the provisions of law have been misinterpreted and misconstrued; the Appellant is bona fide dealer in gold and silver bullion; Appellants is not concerned with the subject gold, i.e. 3 pieces seized from Jitendra Kumar Mishra; the department relied solely upon the statement of Shri Jitendra Kumar Mishra, who is alleged to have stated that the said yellow metal was handed over to him without any document or bill by two unknown persons Baikunth Nath and Balram, who have been shown to be worker at their shop at Sona Patti, Kolkata; his statement too was too retracted; request was made for cross examination of Mr. Jitendra Kumar Mishra under the provisions of Section 138B of the Customs Act, 1962 was not given; alleged confessional statement of Appellant was also recordedin Hindi Language; but was not made a relied upon document to the impugned Show Cause Notice; Appellants requested the department vide various letters that original statement of Shri Anurag Jalan recorded in Hindi Language be provided; only a doctored / translated copy, unsigned statements dated 19.02.2015 & 29.06.2015 of the Appellant was provided; cross examination of Shri Jitendra Kumar Mishra was not permitted; there is no other supporting evidence or corroborative evidence or any incriminating document against the Appellants except for the only inculpatory statement of co- accused which cannot be the basis for penalty; no statement of Balram has been recorded. As such no credibility can be given to the statements of the Co-Noticee. Non-providing of copies of the actual statement recorded tantamount to flouting of the norms of Audi alterem partem; the Appellants had been condemned unheard.

9.Coming to the issue of imposing penalties on various persons, we find that the learned Commissioner has imposed penalties as mentioned above. We find that though the Commissioner has imposed stringent penalties on all the persons involved, though the role played by different persons is not properly brought out in the investigation. Shri Ram Chander Verma did not attend on summons for doing statement. His sons have stated that they have nothing to do with the impugned gold. Shri Anurag Jalan submits that the principles of natural justice have been violated in as much as the copy of his statement recorded in Hindi was never given to him in spite of several requests made to them in this regard. He submits that his request for the opportunity to cross- examine Shri Jitendra Kumar Mishra was not accepted by the adjudicating authority. He was given only unsigned translated copy of his own statement. We find that the persons i.e.Baikunth Nath and Balram who claim to have handed over 3 kg gold to Shri Jitendra Kumar Mishra were not examined. All the investigation done by the Department in this regard was to find out that the mobile used by Shri Balram was, in fact, in the name of Shri Santosh Kumar and that Santosh Kumar has not appeared even after being summoned. We find that learned Commissioner records only findings against Shri Balram to the effect that he has not submitted any replies to the show cause notice; Shri Balram and Shri Santosh Kumar are one and the same person having different addresses. It is not understood as to how learned Commissioner could come to a conclusion that the person had the role in smuggling whereas, the investigation has not even examined him and recorded his statement. Similar argument goes in favour of Shri Ram Chandra Verma, who was also not examined. Except Shri Jitendra Kumar Mishra nobody has taken the names of either Shri Ram Customs Appeal Nos.77029, 77004-77007 of 2018 Chander Verma or his sons Sonu Verma and Rahul Verma. On the basis of the ownership of mobile number Mohit Verma son of Ram Chander Verma was also made noticee. However, as submitted by the Appellants, particularly, Shri Anurag Jalan, we find that the entire case is majorly based on one statement of Shri Jitendra Kumar Mishra on 19.02.2015 which was later retracted. No other statement or document point out to their respective roles. In view of the case laws cited by the appellants, we find that retracted statement, that too the only evidence, cannot be a basis for imposing penalty on various persons, as above. Inclusion of various names in the investigation and seeking imposition of penalty, without adducing sufficient evidence, would not help the cause of the case and in fact would go to dilute the case. We find that the roles of different persons, other than Shri Jitendra Kumar Mishra, have not brought out clearly by the investigation so as to render them liable for penalty under Section 112(a) of the Customs Act, 1962. We find that Shri Jitendra Kumar Sharma has rendered himself liable for penalty as he has rendered the seized Gold Liable for confiscation.