Ajay Kumar Mittal, J. - (1.) This appeal has been preferred by the appellant under Sec. 130 of the Customs Act, 1962 (in short, "the Act") seeking quashing of final order dated 19 -2 -2014, Annexure A.4 in Customs Appeal No. 546 of 2008 whereby the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short, "the Tribunal") imposed penalty of Rs. 2 lacs upon the appellant. The following substantial questions of law have been proposed for determination of this Court: - "(i) Whether statement of co -noticee can be used against the appellant without any corroboration? (ii) Whether penalty can be imposed merely on statement of co -noticee in absence of independent corroboration and also in absence of recording of his (appellant) statement? (iii) Whether the order -in -original passed within two and half months of issue of show cause notice without supplying of relied upon documents to appellant are just and legal? (iv) Whether employee of firm can be penalized under Sec. 112(b) of Customs Act without any corroboration of receipt of unlawful consideration by him or confirming his involvement in the offence? (v) Whether Hon'ble CESTAT was justified in confirming penalty of Rs. 2 lac under Sec. 112(b) of Customs Act by simply relying upon allegations in show cause notice and without appreciating that learned Commissioner (Appeals) had given no findings with regard to involvement of appellant in the offence and order -in -original was passed ex parte within two and half months of issuance of show cause notice? (vi) Whether penalty can be imposed arbitrarily under Sec. 112(b) of Customs Act in absence of corroboration or evidence - A few facts relevant for the decision of the controversy involved, as narrated in the appeal may be noticed. The appellant was Assistant Commercial Manager of M/s. Fashion World International, Ludhiana, which is a partnership firm registered as 100% Export Oriented Unit (EOU) in terms of various provisions of the EXIM Policy 1997 -2002 issued by the Government of India. It is engaged in the manufacture and export of ready made garments. It was holding letter of permission dated 12 -8 -1999 issued by Noida Special Economic Zone, Noida. It was granted warehousing licence on 14 -1 -2001 by the Deputy Commissioner of Central Excise, Ludhiana in terms of Sec. 58 of the Act. It was entitled to import or procure duty free inputs indigenously vide notifications dated 3 -6 -1997 and 1 -4 -1995. Vide entry dated 16 -3 -2002, it imported polyester fabric involving duty of Rs. 20,62,622/ - without payment of duty, through Nhava Sheva Port. Contrary to the terms of the agreement, the transporter M/s. Adarsh Parivahan, Bombay did not bring the goods to the factory premises. M/s. Fashion World International resorted to legal action against the transport company. On 8 -4 -2002, the officers of Anti -Smuggling Branch, Customs, Amritsar searched the factory premises and conducted physical stock verification of the raw material and finished goods and took into custody certain documents. The goods imported against Bill of Entry dated 16 -3 -2002 involving duty of Rs. 20,62,622/ - were found to be not received by M/s. Fashion World International. Further, capital goods/raw material involving duty of Rs. 11,74,011/ - imported without payment of duty were found lying unutilised for more than one year. The department issued show cause notice dated 2 -1 -2007 for recovery of customs duty amounting to Rs. 32,36,633/ -. A sum of Rs. 20,62,622/ - was demanded in respect of raw material imported vide entry dated 16 -3 -2002 and not actually received in the factory. Penal action was proposed against M/s. Fashion World International under Sec. 112(a)/114 of the Act. In addition, penalty under Sec. 112(b) of the Act was also proposed against the appellant. The appellant received the said notice without relied upon documents. Therefore, it was not possible for the appellant to file reply. The respondent passed ex parte order dated 23 -3 -2007, Annexure A.1 imposing penalty of Rs. 6 lacs against the appellant under Sec. 112(b) of the Act. No statement of the appellant was recorded. Aggrieved by the order, the appellant filed appeal before the Commissioner (Appeals) under Sec. 128 of the Act. Vide order dated 28 -3 -2008, Annexure A.2, the Commissioner (Appeals) upheld the order dated 23 -3 -2007. Still not satisfied, the appellant filed appeal before the Tribunal. The stay application was also filed in terms of Sec. 129E of the Act. The Tribunal vide stay order dated 30 -9 -2008 directed the company to deposit Rs. 10 lacs and asked the department not to take coercive steps till the stay application was decided. However, in the case of the appellant, the Tribunal granted unconditional stay. The Tribunal vide its final order dated 19 -2 -2014, Annexure A.4 while deciding the appeal, reduced the penalty from Rs. 6 lacs to Rs. 2 lacs. Hence the present appeal by the appellant.
(2.) We have heard learned counsel for the appellant and perused the record.
(3.) Learned counsel for the appellant submitted that the penalty has been imposed on the basis of statement of co -noticee without independent corroboration. It was also urged that in the absence of recording of the statement of the appellant, no penalty could be levied.;