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2016 (7) TMI 648 - GOVERNMENT OF INDIA

2016 (7) TMI 648 - GOVERNMENT OF INDIA - TMI - Import of baggage without declaring the goods - 13300 nos. micro SD cards of 2 GB capacity used in mobile phone. - two bottles of Glenmorangi Signet Single Malt Scotch whisky 70 CL (700 ml) were also recovered - Government.notes that the statement of Shri Darshan Lal recorded under Section 108 of the Customs Act, 1962 is a corroborative evidence that the respondent is associated in a case of smuggling activity with the accused as much as calls had b .....

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t that there is enough evidence to establish Shri Raj Kumar Sabharwal has willingly colluded with Shri Darshan Lal in abetting and facilitating the smuggling of the impugned goods, has force. Considering the gravity of the offence and value of the smuggled goods the Commissioner (Appeals) has erred in reducing the quantum of penalty upon the respondent from ₹ 2,00,000 /- to ₹ 19,000/- only. - F.No.373/841B/13-RA-Cus - ORDER NO.33/2016-CUS - Dated:- 22-3-2016 - SMT.RIMJHIM PRASAD, JOI .....

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t specific information was gathered that one passenger namely Shri Darshan Lal was coming from Hong Kong vide Al Flight No Al 315 on 05.01.2011 and was carrying memory cards in commercial quantity. A surveillance was mounted and the passenger was followed after his identification at the aero bridge. He was intercepted near the exit gate of the Customs arrival hall, after he had walked through the green channel of the IGI Airport. His identification was confirmed vide his passport bearing no H 25 .....

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box and one black coloured stroller bag and one black coloured hand bag and one plastic hand carry bag. During the scanning, some suspicious items were noticed and the passenger was subjected to detailed examination of his luggage before independent Panchas. 2.1. Thereafter, the black coloured hand bag was examined and was found containing three yellow coloured plastic coated envelopes and three Khaki coloured plastic envelopes duly sealed with adhesive tape. All six plastic coated envelopes wer .....

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in order. On examination of both the bags, following items were found: (i) Paper carton Box- B-Ultra Sound Dialogistic Equipment- Model No. C-100, Device NOSDJ 101 B 2718, manufactured by-Mastex Medical Equipments Germany along with accessories. (ii) Black coloured stroller bag - Used Clothes. 2.2. The officers asked the passenger Shri Darshan Lal to produce evidence or documents in support of the undeclared goods mentioned above brought by him and recovered from the handbag and in paper carton .....

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p at IGI Airport) and sealed with Customs Seal No. 6 and were seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the same were smuggled into India and are, therefore, liable to confiscation under the Act ibid. Further, B- Ultra Sound Dialogistic equipment, Model No - C-I 00 Device No- OJ 101 B 2718, manufactured by Mastex Medical Equipment, Germany along with accessories valued at ₹ 4,28,390/- (value taken from internet of same machine) was put in the same pape .....

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and English language; that he is living at 16/785, Bapa Nagar, Military Road, Karol Bagh, New Delhi-5 along with his younger brother and family of his elder brother; that the said premises is in name of his elder brother who expired about six years back; that the name of younger brother is Raj Kumar and he is married and is running a tea stall in Tilak Nagar; that he is married and has four kids and his wife's name is Gurjeet Kaur and is a house wife; that he came to IGI Airport from Hong Ko .....

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C-100 was recovered from his checked in baggage; that the said 13300 memory cards and the ultrasound machine were seized by the Customs officer as shown in panchnama dated 05/06.01.2011 as he did not have valid import documents for import of same and he did not declare the same at the Customs Counter; that before this trip, he used to bring readymade garments from Hong Kong and sell them in Gaffar Market, Karol Bagh ; that since he was working for a long time in Gaffar Market, he realised that .....

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he agreed to the proposal; that further the owner of AMCO International took his mobile no and told him that someone will contact him at the Airport and collect the memory cards from him after he gets out of the Airport; that the owner of AMCO did not tell him the name of person nor gave him any contact no; that he was to get his carrying charges after handing over the memory cards; that he was to sell the memory cards which he bought on his own in the local market i.e Karol Bagh and Gaffar Mar .....

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l; that as per his knowledge Deepak stays in Hong Kong only; that he does not know the cost of ultrasound machine B ultrasound diagnostic equipment Model No C- 100; that Deepak gave him the machine at the Hong Kong Airport and told him that someone will collect it from him in India at the Airport; that Deepak did not give him the name of the person nor he gave him -any contact no; that he was to get the carrying charges for the machine after handing it over in India; that he bought the two whisk .....

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t, he took about US$ 10000 and ₹ 5000/- along with him; that the money was taken by him on loan from friends and he was to return the money after selling the memory cards; that two Mobile Phones which were recovered by the Customs Officer from his possession have nos. 9582865940 the other mobile has sim card of Hong Kong and he does not remember its number that for the first time, he had brought memory cards and on earlier occasion, he used to bring readymade garments; that there is a very .....

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e memory cards @ ₹ 165/per pc.; that he bought the seized memory cards from M/S Amco International, Chuking Mansion, 14th Floor in front of Tasirn Sha Shu station, Hong Kong and he knows Shri Asim who works there at M/S Amco International and his phone no. is 9343131; that Sh. Asim is about 35 years old and his height is approximately 5'6"; that he got the reference of Shri Asim and M/S Amco International from one of the waiter of Kamal Restaurant, Chunking Mansion, Ground Floor; .....

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not know his exact address; that the contact nos. of Jai Pal are 51269596, 90474653 & 51782421; that he used to book air tickets from Travel & Style, Karol Bagh, Arya Samaj Road and used to travel mostly from Air India Airlines; that during his last travel to Hong Kong from 23rd to 25th December, 2010, he purchased readymade garments from the above mentioned address and one turning machine was given to him by one gentleman who introduced himself as Shri Deepak and who had promised him to .....

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erson of Chandni Chowk; that the phone no. of his son Nikhil is 9250757955; that he has two connections in Hong Kong and the numbers are 92764173 and 68083324. 2.5. Further, on enquiry from the mobile company M/S Vodafone, it has been informed vide letter dated 27.01.2011 that the mobile no. 9582865940 was allotted to Shri Vijay, C/o Mangat Ram, H. No. 16/785, Bapa Nagar, Military Road, Karol Bagh, New Delhi, however the photograph appearing on the subscription form, has been found to be of Shri .....

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rred; that the exact name of the issuing shop is not known to him; that the mobile number 9711457642 belongs to his friend namely Raj Kumar who is a property dealer and resides at Harsh Vihar, Pitampura, Delhi and he does not know his exact address; that he had contacted Raj Kumar after his arrival from Hong Kong regarding fixing of dinner; that he and Raj Kumar, do not have any common business interest and in a week, they generally meet 2- 3 times in the evening; that they talk to each other on .....

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ave done it; that he had purchased 6000 pcs of memory cards only and the rest were given to him by Shri Asim of M/S Amco International to hand over those at Delhi IGI Airport; that for purchasing the 6000 pcs of memory cards, he had given 10000 US $ to M/S Amco International and they had given him the credit of the rest of the amount due to the assurance given by M/S Singh Money Exchange Chungkung Mansion, Hong Kong. 2.7. To get the subscriber's details of mobile nos. 9811528834, 9711457642 .....

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6.05.2011 recorded under Section 108 of the Customs Act,1962 stated, that his education qualification is 12thfrom Modi College Punjab and he was working with Al Mrorian Dubai till 2008 and afterwards he has shifted to Delhi and is running property dealer firm namely M/S Jagdama Property, 60 Harsh Vihar, Pitampura, New Delhi-88; that his residence is situated at 1stfloor, 60 Harsh Vlhar, Pitampura, New Delhi -88 and it is owned by him and he along with his family comprising his wife, mother and t .....

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regard, he used to travel abroad frequently most likely to Bangkok and Hong Kong; that he did not have any business relationship with Shri Darshan Lal; that Shri Darshan Lal wanted to sell his shop cum flat and in this respect he had taken some loan about Rs, 1.25 lacs after handing over the shop cum flat paper; that Shri Darshan has taken property papers back at the time of selling his flat, but the amount has not been returned by Shri Darshan Lal as yet; that the mobile number 9871011781 belo .....

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he used to contact Shri Darshan Lal on his mobile number i.e. 9899044710. In response to summons dated 17.06.2011, Shri Raj Kumar Sabharwal again appeared on 21.06.2011 and in his statement recorded under Section 108 ibid, he stated, inter alia, that he has enquired about the said number 9582865940 and it belongs to Shri Darshan Lal; that on enquiry in respect of mobile number 9711457642, it has been found that the said number belongs to Shri Anil Raj Pal who is a friend of Darshan Lal and he do .....

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04.01.2011 - 22.47 hrs, Sr.No.1093 on 05.01.2011- 21.34 hrs). (ii) Shri Darshan Lal in his statement dated 05.03.11 and 27.06. 2011 had accepted that the said mobile no. belongs to Shri Raj Kumar whereas Shri Raj Kumar has denied that this number belongs to him. (iii) As per Vodafone, the said number belongs to a third person Shri Trilochan Singh and the summon issued on this address, has been returned back with the remark no such person' which indicates that the mobile was being used for so .....

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at the time of departure and arrival, indicates that there must be his business interest with the passenger. Shri Raj Kumar in his statement dated 21,06.2011, had stated that the mobile no 9711457642 belongs to Shri Anil Raj Pal, a friend of Shri Darshan Lal whereas Shri Darshan Lal again in his statement dated 27.06.2011, has stated that this number belongs to Raj Kumar and he does not know any Anil Raj Pal. 2.10. It further appeared from the above mentioned facts and circumstantial evidences .....

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s of Glenmorangi Signet Single Malt Scotch whisky 70 CL (700ml), valued at ₹ 10,04,720/- should not be confiscated under Section 111 (d), (i), (l) and (m) of the Customs Act, 1962; the seized memory cards 2GB 7300 and one Ultra Sound Machine valued at ₹ 16,32,890/- should not be confiscated absolutely under Section 111 (d), 1 (i), (l) and (m) of the Customs Act, 1962 as no one has claimed the ownership of the said goods; Customs duty amounting to ₹ 3,80,447/- in respect of the .....

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be imposed upon Shri Darshan Lal, Shri Raj Kumar Sabhamal, Shri Baljeet Singh and any other person who claims the ownership of the said goods later on, under Section 112 of the Customs Act, 1962 for the various acts of omission and commission, as brought out in the body of Show Cause Notice. 3. The Show Cause Notice was adjudicated by Additional Commissioner of Customs (IGI) Airport, New Delhi who vide Order-in-Original No.56/2012 dated 08.08.2012 ordered: (i) confiscation of the seized Memory .....

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med the owner ship of the said goods; (iii) recovery of Customs duty amounting to ₹ 3,80,447/- in respect of the 6000 memory cards and two bottles of Glenmorangi Signet Single Malt Scotch whisky 70 CL (700ml) under Section 28 of the Customs Act, 1962 along with appropriate Interest under Section 28 AB of the Act ibid. (iv) confiscation of black coloured hand bag, black coloured stroller bag and the paper box used for concealing/ keeping the aforesaid goods under Section 118 read with secti .....

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ission and commission as brought out above. 3.1. Aggrieved by the said order, the respondent filed appeal before the Commissioner of Custom(Appeals), who vide Order-in-Appeal No.CC(A)Cus/190/2013 dated 26.03.2013, modified the Order-in-Original to the extent of reducing the penalty imposed on the applicant from ₹ 2,00,000 /- to ₹ 19,000/-. 4. Being aggrieved by the impugned Order-in-Appeal, the department applicant has filed this revision application under Section 129 DD of Customs A .....

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on the respondent not on the department and such act of smuggling should be dealt sternly, no leniently and such a lenient view in spite of evidence on record will encourage smuggling activities. 5. An application for condonation of delay in filing Revision Application is also filed by the applicant on the following grounds: 5.1. That the Revision Application against Order-in-Appeal No. CC(A)Cus/ Air/ 190/2013 dated 26.03.2013 in respect of Shri Raj Kumar Sabharwal passed by the Commissioner of .....

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use, New Delhi on 01.05.2013. 5.3 That the last date for filing the revision application by the department was due on or before 31.07.2013 i.e. within three months from the date of communication of the order. 5.4. That the delay is due to inadvertent mistake of law and is not intentional, genuine and bonafide. 6. Personal hearing was scheduled in this case on 04.08.2015, 02.09.2015 & 15.09.2015. Nobody attended the hearing. 7. Government has carefully gone through the relevant case records a .....

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ner of Customs, New Customs House, New Delhi on 01.05.2013. That the last date for filing the revision application by the department was due on or before 31.07.2013 i.e. within three months from the date of communication of the order. That the delay is due to inadvertent mistake of law and is not intentional, genuine and bonafide. 8.1. As such, the applicant filed this revision application in 32 days after initial 90 days period, which falls within condonable limit of 90 days. Hence, Government .....

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s carrying any contraband or any dutiable goods or anything to be declared to the Customs in his baggage or on his person, he replied in the negative. The pax Shri Darshan Lal was carrying two checked in baggage. During the scanning, some suspicious items were noticed and the passenger was subjected to detailed examination of his luggage before two independent Panchas. The memory cards totaling 13,300 pcs valued at ₹ 21,94,500/- and two bottles of Glenmorangi Signet Single Malt Scotch Whis .....

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al. The impugned Order-in-Original was modified by the impugned Order-in-Appeal to the extent of reducing penalty imposed upon Shri Raj Kumar Sabharwal to ₹ 19,000/-. Now the Department has filed this Revision Application on grounds mentioned in para 4 above. 10. Government observes that the applicant's main contentions are that Shri Raj Kumar Sabhatwal has colluded with Shri Baljeet Singh and abetted the passenger Shri Darshan Lal in his attempt to clear the impugned goods in a clande .....

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t propelty papers; that on further enquiry Shri Raj Kumar has stated that he has returned the property papers without taking back the loan which does not seem to be acceptable; that his intense involvement with Shri Darshan Lal at the time of departure and arrival indicates that there is business interest between him and the passenger. 11. Government notes that in his voluntary statement tendered by Shri Raj Kumar Sabharwal on 16.05.2011 and 21.06.2011, he admitted that around 03 years back, he .....

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r belongs to Sh. Anil Raj Pal who is a friend of Shri Darshan Ial, 12. Government further observes that the statements of Shri Darshan Lal and Shri Raj Kumar Sabharwal clearly indicate that Shri Raj Kumar Sabharwal is also involved in the smuggling activities of Shri Darshan Lal in as much as since the departure of Shri Darshan Lal on 04.01.2011 for Hong Kong till his landing at IGIA on 05.01.2011, he was in constant touch with the mobile number 9711457642 of Shri Raj Kumar Sabharwal. Shri Darsh .....

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g and simultaneously Shri Raj Kumar has also accepted that he has given ₹ 1.25 lakh as loan to Shri Darshan Lal against property papers. On further enquiry, Shri Raj Kumar Sabharwal stated that he has returned the property papers without taking back the loan which does not seem to be acceptable. His intense involvement with the passenger at the time of departure and arrival, indicates that there is business interest between him and the passenger. 13. Government.notes that the statement of .....

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under Section 108 before a Customs Officer has evidentiary value and is binding. Moreover, the statements have not been retracted at any stage. 14. Government also places reliance on the following judgements of various Courts wherein evidentiary value of statements recorded under Section 108 of the Customs Act, 1962 is emphasized. 14.1. The Apex Court in the case of Naresh Kumar Sukhwani vs Union of India 1996(83) ELT 285(SC) has held that statement made under Section 108 of the Customs Act, 196 .....

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not required to prove its case with mathematical precision. The whole circumstances of the case appearing in the case records as well as other documents are to be evaluated and necessary inferences are to be drawn from these facts as otherwise it would be impossible to prove everything in a direct way. 14.3. Kanwarjeet Singh & Ors vs Collector of Central Excise, Chandigarh 1990 (47) ELT 695 (Tri) wherein it is held that strict principles of evidence do not apply to a quasi-judicial proceedin .....

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