TMI Blog2014 (10) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... hal, but the facts mentioned about Shri Bhuwania, by them, could not lead to apprehending of Shri Bhuwania. It also appears from the statement of various persons that the Appellants were in knowledge of the activities carried at the said godown - Decided against the appellants. - Cus. Appeal Nos.90,101,105 & 106/06 - ORDER NO.FO/A/75443-446/2014 - Dated:- 5-8-2014 - DR. D.M.MISRA AND DR. I.P.LAL, JJ. For the Appellant : Shri Biswajit Mukherjee Shri Shovendu Banerjee, Shri Sanjay Bhowmik, Advocate, Shri K. P. Dey, Advocate For the Respondent : Shri S. Misra, Addl. Commr. (A.R.) JUDGEMENT Per Dr. I. P. Lal : Heard both sides. 2. By the impugned order, the ld. Commissioner, confiscated the seized goods of foreign origin valued at ₹ 2.16 Crores and imposed penalty on various noticees including the present Appellants. He imposed penalty of ₹ 25.00 lakhs on Shri Vinod Agarwal, owner of Director of M/s Viraj Technocom, penalty of ₹ 10.00 lakhs each on Shri Shyam Sunder Singhal and Shree Niwas Lahoti, the real estate broker and penalty of ₹ 50,000/- on Shri Rajesh Agarwal under Section 112 (a) (b) of the Customs Act, 1962. 3. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dated 24.04.2002, on security deposit of ₹ 67,500/- and the monthly rent of ₹ 22,500/- which was collected by Shree Niwas Lahoti and handed over to him. On specific query from the Officers, he stated that he did not know Shri Bhuwania and that the said Lease Deed was signed through the brokers, Shree Niwas Lahoti and Shri Shyam Sunder Singhal. It was admitted by Shri Vinod Agarwal that no documents were maintained in the godown for storage of impugned goods or its issue. He also could not produce any licit document of import/purchase/sale of the said goods. 4.4 Shree Niwas Lahoti in his statement dated 31.07.2002 stated that the aforesaid premises was taken on lease by Shri Vijay Bhuwania that he had seen him who was about 40 years of age, tall, medium build, fair complexion and normal hair. He stated that he came to know about him through Shri Shyam Sunder Singhal, another property dealer. He stated that the Lease Deed was prepared by him and he got it signed by Shri Vijay Bhuwania in his presence and also in the presence of Shri Sham Sunder Singhal and Shri Ravi Sharma, who had signed as witnesses to the said Deed. He admitted that he used to collect se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in concise knowledge that the same would be used in conceal real identity of the persons, who indulged in smuggling activities. 5. Enquiry with the transporter, namely, M/s Balaji Enterprises involved in transportation of the impugned goods, was found to be fake. 6. It appeared from the above, that these Appellants were involved in dealing with smuggled goods, its storage in the godown owned by Shri Vinod Agarwal rented to Shri Vijay Bhuwania, repacking of the said goods and their transport to various location. The clue provided by these Appellants on whereabout of Shri Vijay Bhuwania could not lead to any result. 7. In view of above facts, a show-cause notice was issued to various noticees proposing for confiscation of goods, imposition of penalty for acting/abetting in the Act of smuggling. The show-cause notice was adjudicated by the ld.Commissioner, which resulted into culmination of the above order. Being aggrieved by the order of the ld.Commissioner, these appeals are filed. 8. Ld. Advocate, Shri Biswajit Mukherjee and Shri Shri Shovendu Banerjee, appearing for Shri Vinod Agarwal, stated that Shri Vinod Agarwal is the Director of M/s Viraj Technocom Ltd. and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing out godown and executed the lease deel in the format, which he adopted in cases of other tenants when Shri Bhuwania agreed and expressed his desire to take the godown premises on lease. The submission is that having settled the godown premises to be leased out to Shri Bhuwania by Shri Vinod Agarwal, a lease agreement was prepared, which was witnessed by the Appellant. Thereafter, the Appellant got his commission and did not have any concern or any other interest in the matter of Shri Vinod Agarwal and Shri Bhuwania. 10. The ld.Advocate, Shri Sanjay Bhowmik, on behalf of Shri Rajesh Agarwal, submitted that the penalty has been imposed on him when extending a chance of a personal hearing and the Appellant could not be defended by an Advocate of his choice before the original authority. He therefore, prayed that this case may be remitted back to the original authority for fresh decision of the case after granting an affordable opportunity of hearing to the Appellant. 11. The ld. A.R. for the Revenue reiterated the findings of the ld.Commissioner. 12. We find that Shri Vinod Agarwal is the owner of the godown, from which the goods of foreign origin, namely, medicinal powde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh any life, whereabout of the said tenant, i.e. Shri Vijay Kumar Bhuwania. It is evident from these facts that the involvement of Shri Lahati and Shri Shyam Sundar Singhal, in these episode, cannot be ruled out. It is also noticed that both these persons stated that they have seen Shri Bhuwania, but the physical appearance of Shri Bhuwania narrated by these persons were found to be contradictory. As regards, Shri Rajesh Agarwal, the ld.Commissioner has found him responsible for falsification of various documents. 13. To the issue whether non-allowing of cross examination as requested by Shri Vinod Agarwal, is violative the principle of natural justice, we are of the view that cross examination cannot be claimed as a matter of right in departmental proceedings and each case has to be examined on its own merit. In the present case, it is not in dispute that the goods of foreign origin were recovered from the godown owned by the Appellant. As stated above, none of the mobile numbers purported to belong to Shri Vijay Bhuwania, were actually found in his name. On the contrary, the Appellant had executed lease deed for his godown with Shri Vijay Bhuwania, who did not exist. To the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolator concerned, may assume some significance in any prosecution initiated before the Criminal Court for the very contravention or violation concerned. But, in our view, as held by the Apex Court in M/s. M.CT.M. Corporation Private Ltd. case (AIR 1996 SC 1100) (supra); Gujarat Travancore Agency s case [1989 (42) E.L.T. 350 (S.C.) = AIR 1989 SC 1671] (supra) and the two Division Bench judgments of this Court in Vijaya Electricals s case (82 STC 268) (supra) and Lakshmi Co. s case (87 STC 345) (supra), the penalty contemplated under Section 112(a) of the Act for the violation in question is of a civil obligation, remedial and corrective in its nature and is far different from the penalty for a crime or a fine or forfeiture provided as punishment for the criminal or penal laws. The regulation which is sought to be provided for, and the violation of which is to be dealt with under Sections 111 and 112 of the Act, are in respect of the laws of great and serious importance in conserving the economy of the Nation and have to be, therefore, viewed in their proper perspective so as not to result in abnegation or abrogation of the avowed object and purpose of the Legislation, which is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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