TMI Blog2002 (1) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and the carton, to New Custom House near IGI Airport and the carton was opened and examined in the presence of Sandeep Bhaskar, Vipin Kalra and independent witnesses. 25 boxes bearing labels which displayed the printed words MADE IN JAPAN and showed the quantity of contents were recovered from the carton. On further examination, the boxes were found to contain a total of 25000 sets of complete watch movements fitted with cells. These goods (valued at Rs. 50 lacs) and the car were seized under Panchnama, under Section 110 of the Customs Act, 1962. Statements of Vipin Kalra and Sandeep Bhaskar were recorded under Section 108 of the Customs Act on 23-10-97 itself. Officers conducted search of the residential premises of Vipin Kalra on 24-10-97 and found there a flight boarding pass which showed that he had visited Singapore on 10-9-97. They also searched the residential premises of one Ajay Rajpal (who had been named by Sandeep and Vipin in their respective statements) and recovered cash of Rs. 2 lacs from his personal almirah. They also searched his business premises on the same day (24-10-97) and recovered cash of Rs. 1,25,000/- along with imported goods valued at Rs. 3,41,190/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seized from the premises of Ajay Rajpal represented sale proceeds of the smuggled goods and were liable to confiscation under Section 121 of the Act; that the electronic goods seized from Ajay Rajpal s premises were also liable to confiscation; and that Vipin Kalra, Sandeep Bhaskar, Ajay Rajpal, Pramod Kumar, Karamvir, Chanderpal Pathak and Ms. Neelam were liable to penalty under Section 112 of the Act. Accordingly show cause notice [SCN] dated 21-4-98 was issued to all the said persons as well as Rajesh Bhaskar, R.P. Sethi and M/s. Umesh Book Service. The notice was contested. In adjudication, the Commissioner of Customs, Air Cargo Unit, New Custom House, New Delhi passed the following order :- I hold that goods viz. 25,000/- pieces of complete watch movement valued at Rs. 50,00,000/- are liable to absolute confiscation under Section 111(d) (I) (M). The prohibition is due to violation of sub-section (2) (b) of Sec. 3 5 of the FT (Development and Regulation) Act, 1992 read with Section 11 of CA, 1962. I do not give the option to redeem the same under Section 125 of CA, 1962 since the goods were imported in the name of fictitious entities of M/s. Umesh Book Service and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Advocate, Sh. A.K. Jain, appeared for R.P. Sethi and submitted that the imposition of penalty on his client under Sections 112(a) and (b) of the Customs Act was beyond the scope of the SCN inasmuch as there was no specific proposal in the SCN for imposing penalty on him. The proposal, as against R.P. Sethi, was to confiscate the books alleged to have been used for concealing smuggled goods. Counsel submitted that the finding of the Commissioner to the effect that Sethi had failed to discharge his responsibility as a CHA and rendered himself liable to penal action under Section 112(a) of the Act was also beyond the SCN, in which there was no allegation that Sethi had acted with mens rea and in contravention of the CHA Licensing Regulations, 1984. Moreover, ld. Advocate argued, Section 112 was not invocable in a case of violation of the said Regulations. Ld. Counsel relied on a catena of decisions in support of his arguments. Ld. JDR, Sh. J. Singh referred to the statement of R.P. Sethi and submitted that Sandeep Bhaskar and Pramod Kumar were admittedly employees of the CHA firm and H card-holders and had authority to file Bills of Entry for clearance of import goods. He argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.P. Sethi under Sections 112(a) and (b) cannot be sustained and the same is set aside. 5.1 Ld. Advocate, Sh. Harbans Singh submitted that his client, Rajesh Bhaskar was a doctor working in a P.H.C in Amritsar District (Punjab) at the material time; that he was the owner of Maruti Car No. DL-4CG-1513; that his brother Sandeep Bhaskar was engaged in cargo clearing and forwarding business in the name of M/s. Reliable India; that Sandeep had no CHA licence of his own and was therefore working with R.P. Sethi's Overseas Air Cargo Services (CHA) also; that it was without his (Rajesh s) knowledge or consent that Sandeep used the car for carrying smuggled goods on 23-10-97; that the department could not prove any connection between Rajesh and the smuggled goods or between him and M/s. Umesh Book Service; that in such circumstances the Commissioner s finding, against him, of complicity in the smuggling of watch movements was not sustainable; that there was no allegation, against Rajesh, of any commission/omission or of any abetment of anybody else s commissions-omissions, rendering the goods liable to confiscation under Section 111 of the Customs Act, and therefore the penalty imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was used, without his consent or knowledge, by his brother. I note that, under Section 115, no conveyance used for carriage of smuggled goods could be confiscated if its owner proves that it was so used without his knowledge or his connivance with the person in charge of the vehicle. It appears from the record, in this case, that the Commissioner has not applied his mind to the appellant s plea that his car had been used for carriage of smuggled goods without his consent or knowledge. The Commissioner has to examine this plea in the light of the evidence available on record and decide afresh on the issue whether the car should be confiscated under Section 115 of the Act. The order of confiscation of the car is set aside, along with the redemption fine, and the said limited issue is remanded to the adjudicating authority for fresh decision in accordance with law and the principles of natural justice. 6.1 Ld. Advocate, Sh. K.K. Anand, appearing for Ajay Rajpal, submitted that this appellant had been falsely and vindictively implicated by Vipin Kalra and Sandeep Bhaskar in their statements; that the appellant had no connection with Umesh Book Service in whose name the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appellant by the Additional Sessions Judge; and that the impugned order had to be set aside. Ld. Advocate relied on the Tribunal s decision in Kothari Products Ltd. Others v. CCE, Kanpur [1999 (31) RLT 67] as also its Final Order No. A/155-156/2001, dated 16-2-2001, [2001 (136) E.L.T. 960 (T)] passed in Appeal Nos. C/42-43/2000-NB [Punit Kumar Sakhuja v. CC, New Delhi]. 6.2 Ld. JDR submitted that the case against this appellant was based almost entirely on the statements of Vipin Kalra and Sandeep Bhaskar. He referred, in this connection, to pages 3 to 7 of the SCN and para (8.4) of the order of the Commissioner. In his rejoinder, the Advocate submitted that the documentary evidence in the case disproved the statements relied on by the Commissioner. He contended that the documentary evidence would prevail over the oral evidence in any contradiction between the two. In this connection, Counsel relied on the Tribunal s decision in R.P. Industries v. Collector of Customs, Ahmedabad [1996 (82) E.L.T. 129]. 6.3 The submissions have been examined. It has been submitted by both the sides that the decision of the adjudicating authority is almost entirely based on the statements of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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