2026-VIL-1790-CESTAT-ALH-CU
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CUSTOMS CESTAT Cases

Customs - Penalty under Section 112(b) of the Customs Act, 1962 on Customs Officer for Alleged Failure to Stop Passenger at DFMD - Appellant, a Havildar posted in the customs arrival hall of the airport, was alleged to have assisted in smuggling of gold as the DFMD light turned red when the passenger passed through but he neither stopped him nor informed the seniors - Gold bars were recovered from the passenger by DRI, and penalty under Section 112(b) imposed on the Appellant was upheld by FAA - Appellant contended that the DFMD was faulty, that he was not a proper officer and that no duty was assigned to him at the DFMD - Whether penalty under Section 112(b) can be sustained on the allegation of inaction at the DFMD - HELD - The DFMD turned red more than 20 times within about 20 minutes, which shows that the machine was faulty. The Appellant is not a proper officer under Notification No. 40/2012-Cus (N.T.) dated 02.05.2012 for the powers under Sections 100 and 103, and the duty roster does not show that he was deputed at the DFMD. All officers posted in the arrival hall are collectively responsible for any lapse, so the allegation cannot be sustained only against the Appellant. Omission, inaction and negligence in duty cannot be a proof of abetment in smuggling - The main accused did not implicate the Appellant, and in another case from the same flight the FAA had set aside the penalty on an identical allegation - Penalty on this allegation is not sustainable and the impugned order is set aside - Customs - Reliance on Call Details and WhatsApp Chats Without Certification under Section 138C of the Customs Act, 1962 for Imposing Penalty - Revenue alleged that the Appellant colluded with the handler and the co-accused in smuggling of gold, and relied on call details and WhatsApp chats of the co-accused with the Appellant - FAA considered only the number of calls as abnormal while upholding the penalty - Appellant contended that the electronic evidence was not certified under the Evidence Act, 1872 - Whether call details and WhatsApp chats can be relied upon to impose penalty - HELD - Only the number of calls was considered as abnormal and the contents of the calls are absent. The call details show that there was no call after 11.08.2021, so no conversation was held between 12.08.2021 and the date of the incident, and no adverse conclusion can be drawn on the number of calls. The call details and WhatsApp chats cannot be used as evidence as they were not certified under Section 138C, and the procedure under Section 65B of the Evidence Act, 1872 was not followed - The allegation of collusion based on such evidence is not sustainable, and the penalty cannot be upheld on this basis - Customs - Admissibility of Statement Recorded under Section 108 of the Customs Act, 1962 Without Following Procedure of Section 138B and Denial of Cross-Examination - Appellant, a Havildar posted at the airport, was arrested by DRI and his statement recorded under Section 108 allegedly admitted involvement with the accused in smuggling of gold - Appellant retracted the statement at the first opportunity stating that it was recorded under duress and threat, and his requests for cross-examination of the Superintendent and the co-accused were not granted - Penalty under Section 112(b) imposed on the basis of the statement was upheld by FAA - Whether penalty can be imposed solely on the statement recorded under Section 108 without following the procedure under Section 138B - HELD - Under Section 138B, the person who made the statement has to be first examined as a witness before the adjudicating authority, which has to form an opinion whether the statement should be admitted in evidence in the interests of justice. Thereafter an opportunity of cross-examination has to be given. The statements under Section 108 acquire relevance only when this procedure is followed. The procedure was not followed here and the crucial witnesses were neither examined nor offered for cross-examination despite the request, so none of the statements is admissible against the Appellant. The statement is the sole basis for the penalty and cannot be accepted blindly without corroborative evidence - The Appellant was penalised solely on a statement given under duress without proper opportunity of hearing, and the order of the FAA is set aside with consequential relief, if any, as per law.
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