TMI Blog2016 (7) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, JOINT SECRETARY ORDER: This Revision Application is filed by Commissioner of Customs, IGI Airport, New Delhi (hereinafter referred to as Applicant) against the Order-in-Appeal No. dated 26.03.2013 passed by Commissioner of Customs, (Appeals) New Delhi, with respect to Order-in-Original No. 56/2012 ADC dated 08.08.2012 passed by Additional Commissioner of Customs, IGI Airport, New Delhi in respect of Shri Raj Kumar Sabharwal (hereinafter referred to as Respondent), 2. Brief facts of the case are that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies from ₹ 158/- to ₹ 170/-per pc) were put into the black coloured stroller bag along with the hand bag and both bottles of Glenmorangi Signet Single Malt Scotch whisky 70 CL (700 ml) valued ₹ 14,720/- (as declared by passenger Shri Darshan Lal and also verified from Duty Free shop 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 paperbox 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. Total value of the seized goods calculated was ₹ 26,37,610/-. 2.4. Further, the statement of Shri Darshan Lal was recorded under Section 108 of the Customs Act wherein he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tact 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 Market; that he stayed in Kamal Guest House in Hong Kong; that Kamal Guest House is in Chun King Mansion; that a person named Deepak contacted him in Kamal Guest House and asked him to carry one ultrasound machine B -ultrasound diagnostic equipment Model No. C-100 against the payment of ₹ 5,000/- as carrying charges for carrying the same to India; that on his earlier visits also Deepak gave him readymade garments for carrying to India and paid him carrying charges, so he agreed to his proposal; 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 whisky ..... 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Station from Shri Jai Pal, who is a local resident and resides in Chunking Mansion; that he does 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 pay some charges for the delivery of the same machine at the Airport in New Delhi to the person who will approach him at the airport itself referring him; that after his delivery of the turner machine at the airport, the person gave him ₹ 3,000/-; that sometimes he used to receive money through M/S Singh Money changer, Chunking Mansion, 15th floor, Hong Kong against the money which was handed over to some person near town hall, Chandni Chowk and he does not know the exact address of the person of Chandni Chowk; that the phone no. of his son Nikhil is 9250757955; that he has two connections in Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 9871011781 the mobile company was contacted and it informed vide letter dated 11.032011 the details of subscriber of the mobile no 9811528834 as Baljeet Singh, B-3/24, 2nd Floor, Sector-16, Rohini, Near Sardar Bus Stand, New Delhi and 9711457642 as Trilochan Singh, WZ-H-118, Sant Nagar Extn. Delhi whereas Shri Darshan Lal had given the detail of holders of these mobile no.9811528834 as Jassi of M/S Simran Collection and of 9711457642 as Raj Kumar. 2.8. Shri Raj Kumar in his statement dated 16.05.2011 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 two children reside there; that around three years back, he came in touch with Shri Darshan Lal who used to come at motor repairing shop of his relative situated at Rama Market, Pitampura, New Delhi; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 some illegal activities i.e. smuggling activity. (iv) Shri Darshan Lal had accepted that he had taken loan from friends to purchase 6000 memory cards from Hong Kong 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 has 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 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 Darsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962 with option to redeem the same on payment of redemption fine of ₹ 3,00,000/-(Rs.Three lakhs only). (ii) absolute confiscation of the seized memory cards 2GB 7300 and one Ultra Sound Machine valued at ₹ 16,32,890/- under Section 111 (d), (i), (l) and (m) of the Customs Act, 1962 as no one has claimed 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 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). (v) imposed penalty of ₹ 3,00,000/- (Rs.Three lakhs only) upon Shri Darshan Lal under Section 112 of the Customs Act, 1962 for the various acts of omission and commission as brought out above. (vi) imposed penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 available in case file written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government first takes up the application for condonation of delay in filing the Revision Application by the applicant after a delay of 32 days. The applicant vide their letter c.N0. dated 1411.2013 has submitted that the said Order-in-Appeal was dispatched from the office of the Commissioner of Custom (Appeals) New Delhi on 01.05.2013 and was received in the office of the Commissioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he had taken loan from friends to purchase 6000 memory cards from Hong Kong and simultaneously Shri Raj Kumar has also accepted that he has given Rs. as loan to the pax against 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 came in touch with Shri Darshan Lal; 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 of about ₹ 1.25 lacs after handing over the shop cum flat papers; that the mobile number 9871011781 belongs to his wife Rekha Sabharwal; that he does not know anything about the Mobile no. 9711457642; that on enquiry in respect of mobile number 9711457642, it was found that the said number belongs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India 1996(83) ELT 285(SC) has held that statement made under Section 108 of the Customs Act, 1962 is a material piece of evidence collected by the Customs Officials. That material incriminates the Petitioner inculpating him in the contravention of provisions of the Customs Act. Therefore, the statements under Section 108 of the Customs Act, 1962 can be used as substantive evidence in connecting the applicant with the act of contravention. 14.2. In the case Collector of Customs, Madras and Ors vs D. Bhoormull1983(13) ELT 1546(S.C.) the Hon'ble Supreme Court has held that Department was 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 proceedings and evidence on record in the shape of various statements is enough to punish the guilty. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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