TMI Blog2010 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes V.K. JAIN, J. 1. This appeal under Section 130 of Customs Act, 1962 is directed against the order dated 04.06.2009 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), whereby it allowed the appeal filed by the respondent against Order-in-Original No. KRB/ACE/08/05 dated 09.06.2005 passed by the Commissioner of Customs (Exports) and imposed a penalty of Rs10,000/- upon the appellant. 2. The following question of law arises for our consideration in this case: "Whether the finding of the Customs, Excise and Service Tax Appellate Tribunal that the appellant is liable for penalty under Section 112(a) of the Customs Act, 1962 on the charge of abetment is perverse?" 3. On 12.10.2002, the officers of Directorate General of Revenue Intelligence, on receipt of information regarding smuggling of contraband goods through speed post parcels, visited Speed Post Centre at Bhai Vir Singh Marg, New Delhi and identified 8 parcels, including 4 parcels received from Singapore and addressed to M/s Beam Technology. It was notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Inspector. He also admitted that 9 parcels cleared on 11.10.2002, in the name of M/s Beam Technology, were cleared for duty free delivery, with the help of Customs Inspector Shri Rajesh Kumar. He further stated that between August, 2002 to 11th October, 2002, he had got cleared about 30-40 parcels, containing computer parts, without payment of duty and had received Rs 5 lakhs, half of which, was given by him to Shri Rajesh Kumar. He stated that he did not inform the appellant Vishnu Kumar about the contents of the parcels though he had given Rs 200/- to him. Shri Rajesh Kumar, Customs Inspector, corroborated the statement of Shri Kishori Lal and also implicated his senior officers. Shri Sandeep Sehgal was also examined and he admitted having imported computer parts without payment of duty and also having paid Rs15,000/- per parcel to Shri Kishori Lal. 4. The Commissioner of Customs (Exports) imposed penalty of Rs 10,000/- upon the appellant Vishnu Kumar in respect of parcels meant for M/s Abhishek Electronics, vide Order-in-Original No.RSS/ACE/32/2003 dated 28.11.2003/ 2.12.2003. But, in the appeal, filed by the appellant Vishnu Kumar against that order, the penalty was set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cel/letter packet, unless the same are accompanied by a declaration declaring the nature, weight and value of the contents. It was not disputed before the Tribunal that the 4 parcels seized by DRI on 10.12.2002 did not have declaration mentioning their description weight and value of their contents. It was noted by the Tribunal that there was evidence on record to indicate that this was not an innocent omission since clearance of the post parcels for duty free delivery at the sorting stage, without sending the same to foreign post office, would have been impossible if the actual description, quantity and value had been declared on the Declaration Form pasted on the parcels. The Tribunal, therefore, held that the goods seized by DRI on 10.12.2002 had been imported contrary to the prohibition imposed under Section 11 of Customs Act and, therefore, had rightly been confiscated under Section 111(d) of the Act. The finding of the Tribunal to the extent it held that the goods, seized by DRI, were liable to confiscation under Section 111(d) of the Act has not been disputed before us. 9. The next question which comes up for consideration is as to whether the appellant had abetted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Customs Act,1962 are quasi-criminal in nature, the Department is not required to prove its case beyond reasonable doubt, as is required to prove commission of an offence in a criminal prosecution and it is sufficient if the guilt attributed to the charged person is established on a preponderance of probabilities. As observed by the Supreme Court in Collector of Customs, Madras Others vs. D.Bhoormull: 1983 ELT 1546(SC), all that is required to be established is such a degree of probability that a prudent man may, on its basis, believe in the existence of the act in issue. 12. As noted earlier, the parcels in question did not have, on them, the prescribed declaration giving the description, weight and value of the goods that were imported into India. The appellant did not bring this material fact to the notice of Customs Inspector, posted at the Centre. When an official engaged in sorting of such parcels finds a parcel without requisite declaration pasted on its front, he, if acting bona fide, is bound to get suspicious and bring this fact to the knowledge of the Customs Inspector posted at the Centre so that he could send such parcel to the Foreign Post Office for the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods. That precisely was the reason for keeping a watch of what the Customs Inspector did with the parcels and informing Kishori Lal about it. The very fact that the appellant himself felt disgusted in informing Kishori Lal about the arrival of these parcels also is a strong circumstance which suggests that he knew that Customs Duty was being evaded by clearing those parcels without first sending them to Foreign Post Office for the purpose of examination. Had that not been the case, there would be no reason for him to feel disgusted or ashamed of what he was doing. 15. The appellant admittedly having known that the Customs Inspector had released 9 parcels meant for M/s Beam Technology and two parcels of M/s Abhishek Electronics on 11.10.2002, without detaining them and without charging any duty, his act in informing Kishori Lal about arrival of four more parcels on 12.10.2002 leaves no reasonable doubt that he knew that the parcels being cleared by Shri Rajesh Kumar, Customs Inspector contained dutiable articles and, therefore, ought to have been sent to Foreign Post Office for their examination. It is thus quite clear that the appellant was aiding in clearance of dutiable goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Kishori Lal informed about the arrival of these parcels was to enable him to speak to the Customs Inspector Rajesh Kumar so that he does not detain them and does not send them to Foreign Post Office for their examination. Receipt of money by the appellant from Kishori Lal indicates that he knew that duty was being evaded by clearing those parcels without examination and that is why he was being paid for the information being passed by him to Kishori Lal. Therefore, the judgment, relied upon the by the learned counsel for the appellant is of no help to him. 19. The facts and the circumstances of the present case show that the appellant was a party to the conspiracy, pursuant to which customs duty was being evaded by clearing dutiable goods, without sending the parcels, containing those goods, to the Foreign Post Office for the purpose of examination and he also intentionally aided in evasion of duty. The evidence available on record in the form of statement of the appellant recorded under Section 108 of Customs Act, coupled with the statement of Kishori Lal is sufficient to prove the complicity of the appellant in evasion of customs duty. 20. It was contended by the learned ..... 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