TMI Blog1997 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs on Salim Khan and Rs. 25,000/- on Skypack Couriers Ltd. The said couriers have filed another appeal namely C/118/97 against the decision of the said Commissioner passed in Order-in-Original No. AIR-CUS-56/Cour/19/95, dated 27-1-1997 whereunder he cancelled the said appellants registration under sub-regulation (c) of Regulation 17 of Courier Imports (Clearance) Regulations, 1995. We shall take up the first two appeals i.e., Appeals C/324/96 and C/320/96. The said two appeals have been filed against the common order passed by the Commissioner of Customs, Sahar International Airport, whereunder he levied a penalty of Rs. 2.00 lacs on the appellant Salim Khan and Rs. 25,000/- on Skypack Service Specialists Ltd., the other appellants, for violation of the provisions of Section 112(a) and (b) of the Customs Act, 1962. It is the case of the Department that certain persons working with the appellant Skypack Couriers Ltd. who were clearing the consignment at Sahar International Airport cleared computer parts apart from the normal legal consignments and articles sent for carriage and attempted to smuggle the same by having a conspiracy among themselves and thereby violated the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Airport, they were apprehended for smuggling. From 22-12-1993 to 2-5-1994 various statements were recorded, recorded by Kiran Asgaonkar, Larry Periera, Vipul Bhatt and P.G. Krishnan were recorded. It will be clear in the statements of Kiran Asgaonkar at pages 155-168 which itself says as to how they had been instructed by Vipul Bhatt, as to how to clear the goods without payment of duty for certain monetary consideration. The bags which Asgaonkar tried to clear contained auto parts. Statements of Asgaonkar if we go through it would show that he with the connivance of Vipul Bhatt, Larry Periera they had been clearing auto parts not only in December, 1993 but earlier time also twice for which he has been given monetary consideration. This has been confirmed by Vipul Bhatt in his statement. In fact in the reply to the show cause notice it is the submission of the appellants that the said three employees actions were without any knowledge or consent of the appellants, and such actions are for their personal gain only as is evidenced by their statements. Nowhere did they say that the appellants firm was implicated. It was also stated by them that evidence does not disclose any un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se two bags would be containing auto parts. He too had received Rs. 1,500/- and Rs. 1,250/- for doing such job earlier. Vipul Bhatt also admitted the fact and confirmed that he himself was involved in the smuggling of auto parts; that he had persuaded Mukesh Patel to receive consignments of auto parts on his behalf; that on two occasions he had collected these consignments containing auto parts from Mukesh Patel workshop; that he had trained Kiran Ajgaonkar and Larry Periera as to how to clear the auto parts through Customs without screening and without payment of duty. Thus it could be seen that M/s. Skypack Couriers and its employees have been clearing the consignments of auto parts regularly through the courier bags meant for them without payment of Customs duty. In view of their admissions and of such corroborative evidence it would clearly indicate that M/s. Skypack Couriers were concerned in removal of auto parts surreptitiously without payment of customs duty as such they have rendered themselves liable for action under Section 112(a) (b) of Customs Act, 1962." In the statement of Vipul Bhatt he also states that he was involved in the smuggling. In fact one of the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (Customs officer) directed my two boys to put behind auto parts consignments and this should not be mixed up with documents he also advised that this auto parts will be cleared during day time only. But my boys as instructed by me mixed up the auto parts consignments with documents without the knowledge of the Customs officer. No amount was ever paid to the Customs officer. For this clearance. Both of my abovesaid boys are from M/s. Skypack Courier Bombay... From the reading of the statements of all the three employees namely Asgaonkar, Larry Periera and Vipul Bhatt we are of the view that Skypack cannot be held responsible for their misdemeanour. No doubt from the statement of P.G. Krishna that he never knew that his company staff was involved in such affairs and nothing was brought to the company s notice at any stage. This only shows that there may not be any proper supervision. It is argued by Shri Talajia that by not having a proper supervision he tried to justify the impugned order of the Commissioner. The evidence in the case clearly shows that there has been a conspiracy amongst Asgaonkar, Vipul Bhatt and Larry Periera to smuggle the goods namely auto parts for illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndiya and D.S. Gupta. From the reading of the said order, it will be clear that not only the senders of the goods namely Ajay Desai, Prakash Jhaveri and Tushar Pandiya from Singapore through Murgesh on telephonic talk from India, it but also appear from the reading of the impugned order would show that the goods were procured from Singapore through Murgesh as he was friend of the appellant and sent through Citylink International. The payment of the same, it was stated by Ajay Desai, Prakash Jhaveri and Tushar Pandya, have been made by Salim Khan. The evidence also clearly states that from 1991 onwards Ajay had joined business with Salim Khan. The entire operations have been taking place in Navjeevan Society in various flats. Goods were purchased from Salim Khan by D.S. Gupta even though he (Gupta) knew that they were smuggled. This will show that the evidence would show that Digisystems Enterprises etc. were front companies used by Salim Khan. This has been found by the Commissioner in page 98 of the impugned order. From the evidence it appears that Salim Khan used to purchase air tickets for Ajay Desai, Prakash Jhaveri, Tushar Pandiya from Asian Tours. This has been confirmed by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier Imports (Clearance) Regulations, 1995 and therefore a show cause notice was issued as to why action cannot be taken for violation of Regulation 17(c) of the Regulations. By their letter dated 20-11-1996, they have informed the Department about the change. As far as the imposition of penalty of Rs. 25,000/- is concerned, by this order we had disposed of Appeal No. 320/96 filed by Skypack Services Specialists Ltd. whereunder we have held that they were not liable for violation of Section 112(a) and (b) of the Customs Act, 1962. So in our view that ground having been removed, there is no ground on which action could have been taken against the appellants. We would like to add that when the application was pending authorities could have scrutinised the application in terms of Regulation 12 which makes it obligatory on the Customs to make enquiries about the identity and reputation of the applicant. Some action could have been taken. No doubt it can be argued that the order was made only in 1996, the application could not be rejected, but even then in our view some action could have been taken in terms of Regulation 12. Moreover, in this case, the fine has been levied sometime in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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