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2016 (7) TMI 148 - GOVERNMENT OF INDIA

2016 (7) TMI 148 - GOVERNMENT OF INDIA - TMI - Smuggling of goods from Hong Kong via Bangkok in connivance with certain staff deployed at the IGI Airport. - Commissioner (Appeal) has ordered revaluation of goods by allowing 40% abatement instead of 25% allowed by the Adjudicating Authority. Further he reduced the redemption fine from ₹ 4 lakhs to ₹ 1.50 lakhs and penalty from ₹ 2.50 lakhs to 1.50 lakhs, imposed under Sections 125 & 112(a) of the Act, ibid upon Shri Surinder Sin .....

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the ground that no market enquiry was conducted in the instant case. However as is seen from proceeding para market enquiry was conducted in a similar case and the same has not been taken into consideration in the appellate order. - Government therefore finds that the abatment of 40% on market value allowed by Commissioner(Appeals) is on the higher side and the Order-in-Original allowing abatment of 25% is upheld. - Further, Government finds that Appellate Commissioner's decision to redu .....

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), New Delhi, (here in after referred to as the department) against the order-in-appeal No. CC(A)/CUS/362/2013 dated 11,07.2013 passed by Commissioner of Customs (Appeals), New Delhi, with respect to Order-in-Original No. 100/2012 dated 28.12.2012 passed by Addl. Commissioner of Customs, (Airport) New Delhi. 2. Brief facts of the case are that acting on the basis of specific intelligence that Shri Surinder Singh Arora (here in after referred to as respondent), holder of Indian Passport No. J6717 .....

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from the aerobridge, he turned back and entered the toilet situated at aerobridge near gate No. 19-B along with his hand carry bag following one person who was identified as Shri Kawaldeep Singh, an employee of M/S. IDDS, C/o M/S DIAL (holder of Airport entry Card no. A- 109454 issued by BCAS dated 03.01.2012) & resident of WZ-D- 60, Street No.60, Krishna Park, Tilak Nagar, New Delhi- 110018. The Customs Officer on surveillance also entered the toilet to watch their movements and found that .....

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n counter and Shri Kawaldeep Singh was intercepted by the Customs officials at the toilet itself and was brought to the Customs area at the Arrival Hall. 2.3 Shri Surinder Singh was carrying one hand carry baggage and one checked-in baggage bearing Tag No. TG-385484. After collecting his one checked-in-baggage bearing Tag no. TG 385484 from the conveyer belt he exercised his option to walk through the Green Channelized slip (Customs.portion) was checked by the Customs Officers in which he had no .....

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ndependent witnesses. 2.4 After following due process of law, the Customs officer conducted the personal search of Shri Kawaldeep Singh and the passenger Shri Surinder Singh Arora in presence of two independent witnesses. Nothing incriminating was recovered from Shri Surinder Singh Arora. However, on the personal search of Shri Kawaldeep Singh 04 packets wrapped in brown colour tape besides other things as mentioned in the para 1.6 of the Order-in-Original were recovered. 2.5 The recovered four .....

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ef that the same were smuggled into India and therefore, liable for confiscation. The material which were used for concealing memory cards, were also seized under Section 118 read with Section 119 of the Act, ibid. A panchnama dated 13.01.2012 was drawn on the spot. 2.6 The statement of Shri Surinder Singh Arora was recorded on 13.01.2012 under Section 108 of the Act ibid, wherein he, inter- alia stated that he travelled from Hongkong to Bangkok by Flight no, TG -607 dated 12.01.2012 and from Ba .....

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and on seeing him Shri Surinder Singh Arora, started following Shri Kawaldeep; that Shri Kawaldeep took him to a toilet: that he handed over four packets containing memory cards underneath the open space o? the toilet's partition to Shri Kawaldeep which he (pax) was supposed to receive back from Shri Kawaldeep outside the IGI Airport, in the toilet of Metro Station (outside the IGI Airport); that these four packets contained approximately 8020 pcs. of memory cards of 2GB each; that he on ea .....

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t these cards from his residence and he was supposed to get ₹ 50,000/- as profit; that during his last two visits to Hong Kong in Aug, 2011 & Nov, 2011 each time he had brought mobile phones and readymade garments; that he is engaged in the business of repair of water filters and RO and selling them on commission basis under the name and style M/S. S.S Arora; that he earned a profit of ₹ 2 Lakhs annually: that he bought his tickets from his own pocket from M/S ISHA TRAVELS & .....

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joined the job at IGI Airport, Gurpreet introduced him to his father Shri Surinder Singh Arora; that after meeting Shri Kawaldeep twice or thrice, Shri Surinder Singh Arora told him that he (Surinder Singh Arora) used to visit Bangkok and other countries and brought memory cards with him; that Shri Arora allured him of giving money for helping him in removing memory cards brought by the Shri Surinder Singh Arora out of the IGI Airport; that out of greed he agreed to the same; that the Shri Surin .....

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t's partition ; that after putting those four packets inside the long socks which he was wearing, he came out of Customs exit gate and reached the toilet situated in Delhi Metro Airport station (outside IGI, Airport) where the Pax Shri Surinder Singh Arora was already waiting for him, that he handed over the said packets to Shri Surinder Singh Arora and in return Shri Arora paid him ₹ 3000/- for job done by him. Similarly on 13.01.2012, the same modus operand was adopted the only diffe .....

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mately8020-memory cards officer seized the said memory card under Section 110 of Act, ibid on a reasonable belief and that he was supposed to get ₹ 4000/- from the Shri Surinder Singh Arora on delivery of memory cards outside the IGI Airport. 2.8 Since the PAX and Shri Kawaldeep Singh could not produce any documents in support of the import of 8020 Pieces of 2G Memory Cards, collectively valued at ₹ 12,03,000 /- both were arrested under section 104 of the Act, ibid, on 13.01.2012 and .....

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anded over four packets containing 8020 nos. of memory cards of 2GB each, which he concealed inside his socks; that he was to hand over the said packets back to the Shri Surinder Singh Arora outside the IGI Airport, but before that the Customs Officers caught him and recovered the said tour packets from him ; that Shri Surinder Singh Arora was supposed to pay him ₹ 4000/- for completion of the said work. 2.10 Shri Surinder Singh Arora also appeared on 17.01.2012 and tendered his voluntary .....

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th Shri Kawaldeep Singh ; that Shri Kawaldeep Singh would take away the memory cards outside the IGI Airport and hand over the same to him as he was aware that it was not difficult for the employees at IGI Airport to take out goods concealed on their person, as in normal course the employees working at IGI Airport are not searched by the Customs Officers; that he explained the method of concealing memory cards inside the long socks to Shri Kawaldeep Singh and they had also practiced the same at .....

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he brought approximately 8000 memory cards, which Shri Kawaldeep was to deliver outside the Airport to him; that this time also it was decided to pay ₹ 4000/- to Shri Kawaldeep Singh on completion of the said work. 2.11 Shri Gurpreet Singh, S/o Shri Surinder Singh Arora, (pax) appeared before Customs officer on 17.01.2012 and tendered his voluntary statement under Section 108 of the Act ibid on 17.01.2012, wherein, he inter- alia stated that Shri Kawaldeep Singh was his friend; that they c .....

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ing readymade garments on order basis; that apart from this his father also brought mobile phones, which were sold in Ghaffar Market at Karol Bagh; that during the last visit to Hong Kong, his father brought Memory Cards and his friend Shri Kawaldeep Singh assisted his father for bringing Memory cards out of Airport; that his father asked him to contact Shri Kawaldeep who was working at IGI Airport, so as to clear some electronic items without payment of Customs duty; that he called up Shri Kawa .....

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on between Shri Surinder Singh Arora and Shri. Kawaldeep Singh, M/S Vodafone Mobile Services Ltd., C-48, Okhla Industrial Area, Phase-Il, New Delhi was requested to supply the call details of mobile .nos. 9999504343 and 9811740711. The Nodal Officer M/S Vodafone Mobile Services Ltd., C-48, Okhla industrial Area, Phase-Il, New Delhi vide his letter dated 31.012012 supplied the call details of the aforesaid mobile numbers. Scrutiny of the call records reveals that the pax was in touch with Shri Ka .....

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berately encouraged his son, Shri Gurpreet Singh to befriend Shri Kawaldeep Singh and subsequently used the friendship to and abet Shri Kawaldeep Singh and accordingly pax Shri Surinder Singh Arora and Shri Kawaldeep Singh in connivance and collusion with each other attempted to smuggle the illegaly imported goods i.e. Memory Cards without payment of duty, as is evident from the above stated facts. 2.14 It, cumulatively appeared that the pax not only tried to mislead the department but also stat .....

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ys of the receipt of show cause notice, as to why: (i) Free allowance of ₹ 25000/- (as was applicable at the material time) should not be denied to Shri Surinder Singh Arora on account of various acts of omission and commission committed by him. (ii) goods i.e. 8020 nos. of memory cards of 2 GB each, totally valued at ₹ 12,03,000/- should not be held liable to confiscation under Section 111(1) & (m) of the Act, ibid; (iii) Customs duty @ 36.05% (35% + 2% Education less +1% Second .....

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ed by them. 2.15 After following due process of law the case was adjudicated and the adjudicating authority ordered the following: (a) Disallowed free allowance of ₹ 25,000 /- (as was applicable at the material time) to Shri Surinder Singh Arora (Notice No.1) on account of various acts of omission and commission as committed by him. (b) Ordered for confiscation of the impugned seized goods (8020 nos. memory cards of 2 GB each) totally valued at ₹ 12,03,000 /- under section 111 (l) &a .....

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er section 118 and section 119 of the Customs Act, 1962 with an option to redeem the same on payment of redemption fine of ₹ 2,000/-(Rs. two Thousand only) under Section of 125 of the Act ibid; (d) Imposed a penalty of ₹ 2,50,000/-(Rs.Two lakh fifty thousand only) upon Shri Surinder Singh Arora (Notice No. 1) under Section 112 of the Act ibid for the various acts of omission and commission committed by him. (e) Imposed a penalty of ₹ 1,00,000/-(Rs.One Lakh only) upon Shri Kawal .....

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observed that at the outset it is already an admitted fact that no market enquiry was conducted in this case and also that there is no evidence on record about existing market value of impugned goods. He further observed in para 6 of his Order in-Appeal dated 11.07.2013 that Adjudicating Authority himself provided abatement of 40% in several cases at IGI Airport, New Delhi. Therefore, vide his above mentioned Order-in-Appeal he modified the Order-in-Original by directing Adjudicating Authority .....

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n-Appeal, the applicant has field this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1 Vide impugned Order-in-Appeal, the Commissioner (Appeal) has ordered revaluation of goods by allowing 40% abatement instead of 25% allowed by the Adjudicating Authority. Further he reduced the redemption fine from ₹ 4 lakhs to ₹ 1.50 lakhs and penalty from ₹ 2.50 lakhs to 1.50 lakhs, imposed under Sections 125 & 112(a) .....

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t value Ordering 40% abatement in the instant case is excessive and not consistent with his order in other cases. (i) The pax, Shri Surinder Singh Arora does not appear to be bonafide pax and does not deserve any leniency with reduced fine and penalty. (j) The notice Shri Kawaldeep Singh also does not deserve any leniency with reduced penalty. (k) In view of above, it appears that the appellate authority order to reduce abatement along with fine and penalty is not legal and proper. 4.3 The appli .....

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al hearing scheduled in this case on 4.8.2015, 3.92015 and 18.9.2015. Neither applicant nor respondent appeared for hearing on any of the dates mentioned above nor sought any adjournment. Hence the Government proceeds to decide the case. 7. Government has carefully gone through the relevant case records available in case file and perused the impugned Order-in-Original and Order-in-Appeal. 8. Upon perusal of records, Government observes that the case is based on specific information about the res .....

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atement of 25% on market value/ were recovered from Sh. Kawaldeep Singh. As no documentary evidence for licit import of the memory cards would be produced by them, the same were seized under Section 110 of the Customs Act 1962 on the reasonable belief that they were smuggled into the country and were liable for confiscation. Both Sh. Surinder Singh Arora and Shri.Kawaldeep Singh in their statements recorded under Section 108 of the Act, accepted that they were involved in illegal import of goods .....

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4,00,000 /- under Section 125 on payment of appropriate duty and interest under Section 28 and 28 AB. A penalty under Section 112 of ₹ 2,50,000 /- was imposed on Shri.Surinder Singh Arora Rs,1,00,000 /- on Shri.Kawaldeep Singh and ₹ 50,000/- on Shri.Gurpreet Singh. The respondent filed appeal before Commissioner (Appeals) who allowed 40% abatement on the market value of the goods and reduced the redemption fine to ₹ 1,50,000 /- penalty on Shri.Surinder Singh Arora was reduced t .....

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sioner (Appeals) has erred in granting benefit of 40% abatement on the market value of the impugned goods for duty calculation instead of 25% abatement which is excessive and not legal and proper considering the smuggling of large quantity of Memory Cards (8020 pcs) valued at ₹ 12,03,000 /- and is also not consistent with appellate orders in other cases. 9.1 In this regard, Government notes that the original adjudicating authority has dealt at length with the issue of valuation of the impu .....

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of the seized memory cards was done on the basis of market enquiry conducted in a similar case. In this regard, I find that the valuation on the basis of market enquiry has been correctly done as the quotations have been taken from the persons who are dealing in the memory cards. Market enquiry is an authentic source of valuation in cases where the passenger is not having any proof of purchase at the time of import. It may however be mentioned that during the course of personal hearing, the lear .....

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