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TMI Blog2017 (9) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... , under Section 112(a) of the Customs Act, 1962. (d) I impose penalty of Rs. 20,00,000/- (Twenty lakhs only) on Shri Ravinder Singh, under Section 112(a) of the Customs Act, 1962. (e) I impose penalty of Rs. 20,00,000/- (Twenty lakhs only) on Shri Bhupinder Singh, under Section 112(a) of the Customs Act, 1962. I direct the noticees to pay the amount of penalties forthwith. 2. The brief facts are that Revenue received information that two persons namely Shri Bhupinder Singh (BS) and Shri Ravinder Singh (RS) are arriving from Delhi to Mumbai by Flight-9W-2205 on 23.09.2011 with about 5000 grams of 'Iridium metal' procured from illegal channels and smuggled into India. On arrival of the flight, the said Shri Bhupinder Singh was intercepted by DRI Officers after he collected 2 pieces of baggage from the conveyor belt and had loaded them on a trolley. 3. In brief, the facts of the case are - Specific Information received and developed by the Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai, revealed that two persons namely (1) Shri Bhupinder Singh Pyara Singh (hereinafter referred as "Bhupinder") and (2) Shri Ravinder Singh Gurcharan Singh (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated to be 'Indium metal' concealed in Rework Stations. 1 3 cartons, each containing one SMD Rework Station of Chinese origin. 3 Three rework stations were found to have been neatly packed in three separate small cartons. The upper metallic cover of rework station was found fixed with two screws which were opened with the help of screw driver mentioned at Sr.No.2 below. On removing upper cover, another metallic cover of black colour was found fixed with the help of two long screws. The said two screws were opened with the help of T- shaped nut opener mentioned at Sr. No.3 below. On removing black metallic cover, two plastic bottles each from two rework station and one plastic bottle from the 3rd rework station was found, containing grey coloured powder stated to be 'Iridium metal'. Thus, in all, five plastic bottles were found concealed in the said 3 rework stations which contained the stated 'Iridium metal'. The gross weight of the 5 plastic bottles was found to be 5500 gms. and the net weight of 'Iridium metal' was found to be 5007.41 gms. In presence of panch witnesses, the said Bhupinder Singh and Ravinder Singh admitted the said grey coloured powder to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet Singh (hereinafter referred as "Kanwal") was the proprietor of the said M/s. Sato India; that the said firm had been in the business of sale of electronic spare parts such as Radio and T.V. Switches, Voltage Stalilizers, T.V. and VCR Cables, Soldering Iron etc. under their brand name "Sato"; that his job involved traveling to different cities for booking purchase orders and collection of sale proceeds on behalf of M/s. Sato India; that his employer Kanwal (Mobile No.9811258090 & 9818709821) telephonically contacted him on his Mobile No.9350163727 at about 08.15 hrs at his residence situated at 0-117, Tagore Garden Extn., New Delhi and instructed him to prepare to leave for Mumbai by 11.00 hrs. Jet Airways Flight with samples (i.e. the said Rework Stations) to be collected from the residence of Kanwal; that he received another telephone call from the said Kanwal at about 09.00 hrs. to wait for him near D- Block Gurudwara in Tagore Garden; that he met the said Kanwal and Kanwal had taken him in the car and dropped him at Ring road, Rajouri Garden, New Delhi; that the said Kanwal had given him one carton (as referred in Para 2 above) from his car dickey with instructions to delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on 21.09.2011 by Kingfisher flight for prayers in Swarna Mandir. That he had travelled alone from Amritsar to Delhi by Jet Airways flight S2-0632 dated 23.09.2011; that he had boarded Jet Airways flight dated 23.09.2011 (as referred in Para 2 above) from Delhi for Mumbai; that his family had left from Amritsar to Delhi by another flight on 23.9.2011 itself; that he had come to Mumbai to meet one Shri Vicky Singh (actually known as Raminder Singh Julka) in connection with a sales tax matter faced by him (Ravinder) in connection with trading of mobile phones in Delhi; that the said Vicky Singh had telephonically called him on his cell phone No. 9818439593 during his stay in Amritsar; that the said Bhupinder was known to him since last 8 years as a sales man; that he had telephonically contacted Bhupinder at about 11.00 hrs. on 23.09.2011; that he had seen Bhupinder in the said Jet Airways flight dated 23.09.2011 and had talked to him after dis-embarking from the flight in Mumbai; that Bhupinder had proceeded to collect his checked-in baggage in the arrival hall and he had gone out of the airport; that he confirmed the facts of panchanama dated 23.09.2011 regarding his interception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some powder; that he had come to Mumbai on instructions of his employer i.e. Kanwalpreet with further instructions to take his uncle for pilgrimage to HUZUR SAHEB at Nanded; that he had boarded Jet Airways flight on the instructions of Kanwal to accompany the said Ravinder; that the said cardboard carton was accepted by him from an unknown elderly person at the time of entry at airport for a monetary consideration of Rs. 5,000/-; that the contents of the said cardboard carton were supposed to be medical goods as informed to him by the said elderly person. It was also alleged that he was badly beaten in DRI office alongwith another Sikh person viz Ravinder; that DRI officers recorded his Statement which was typed in English and his signatures were forcibly taken on the same; that DRI officers had wrongly implicated him in the case. On receipt of the said letter, matter was examined in DRI office and the allegations were found to be false and incorrect. A rebuttal letter dated 12.10.2011 (discussed in Para 11.2 below) was issued. 11.1. Similarly, the said Ravinder had sent a letter dated 05.10.2011 retracting from his Statement dated 23.09.2011. It was alleged that he had arrived fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the net weight of the material. 12.1 The seized material was taken to Analytical Chemistry Division, BARC., Mumbai, on 25.10.2011 for drawal of representative samples for above purpose. The net weight of the seized grey coloured powder (stated to be 'Iridium metal') was found to be 5007.41 gms. After determining the net weight of seized material, five representative samples totally weighing 297.86 gms. were drawn for confirmation of the identity of seized material. The remaining material weighing 4709.55 gms. was re-packed and sealed with DRI seal. The sealed package was deposited vide No. G-2/2011 with strong room of R&I (basement strong room) at the office of Commissioner of Customs (Preventive), Mumbai. 12.2 Analytical Chemistry Division of B.A.R.C., Mumbai, sent an analysis report No.ACD/AnaI/12/144 dated 20.01.2012 confirming that the representative samples tested positive for 'Iridium metal", as detailed below: - Table -II Analysis report of material Stated to be 'Iridium metal' DRI Code Nature Color Element 1(1} {Solid Powder} Grey Iridium Metal 1(2) (Solid Powder) Grey Iridium Metal 2(1) (Solid Powder) Grey Iridium Metal 2(2} (Solid Powder) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 17.10.2011, Bhupinder interalia stated that the said Kanwal gave him the air ticket for the Jet Airways Flight-9W-2205 dated 23.09.2011 along with the cardboard carton containing SMD Rework Station with 'Iridium' concealed within it; that the said cardboard carton was to be delivered to M/s. Shaktee Electronics, Mumbai and that he was not the owner of the seized goods. 15. Statement of Shri Mahesh Wadhwa, Proprietor of M/s. Shaktee Electronics was recorded under Section 108 of the Customs Act, 1962, on 21.10.2011, wherein he interalia stated that he was the proprietor of M/s. Shaktee Electronics; that the said Bhupinder was known to him as a salesman of Delhi based M/s. Sato India; that his firm I.e. M/s. Shaktee Electronics had been purchasing electronic goods such as rocker switch, toggle switch from M/s. Sato India for last about 10 years; that Bhupinder used to take purchase orders from them on behalf of M/s. Sato India; that M/s. Sato India used to supply the ordered goods through courier; that the payment for the supplied goods used to be collected by Bhupinder during his next trip and that Bhupinder had never brought any samples of any goods to them. On being specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal advice; that he signed the letter under legal advice; that he had also received department's rebuttal letter dated 12.10.2011. On being asked about the ownership of seized goods, he stated that he was not the owner of the seized goods. He also stated that he was not having cordial relations with his elder brother Shri Inderjeet Singh or with his nephew Kanwalpreet Singh and he had no telephonic contact with Kanwal. 18. During the investigation, Call Data Records (CDR) of mobile number 9818439593 used by Ravinder Singh, as per his Statement dated 23.09.2011, was obtained from the service provider. Extract of the call details made/received by Ravinder Singh (Mobile No. 9818439593) from 16.09.2011 to 23.09.2011 were attached to the Show Cause Notice as Annexure-A. Scrutiny of the said calls revealed that Ravinder Singh received and made calls to only Kanwalpreet Singh and Bhupinder Singh during the said period. Shri Ravinder Singh had made calls to only Kanwalpreet Singh from 16.09.2011 to 20.09.2011 and had received almost same number of calls from Kanwalpreet Singh. The said list also showed that Kanwalpreet Singh called Ravinder several times in 23.09.2011 even after land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned that the appellants have received part of the documents and are yet to receive other relied upon documents from DRI, Mumbai and accordingly reserve right to file a comprehensive reply after receiving RUD's. It is further mentioned that vide letter dt. 23.7.2012 and 23.8.2012 remaining RUD's were supplied by DRI. On the next date fixed on 28.8.2012 the advocate on behalf of appellant submitted their reply dt.24.8.2012. The main crux of the defense was that Shri Bhupinder Singh have carried the baggage under question/seizure from Delhi to Mumbai as domestic passenger and was not involved in the activity of smuggling. It was further contended that the baggage had been handed over to Shri Bhupinder Singh by an unknown person outside the Delhi Airport offering him remuneration of Rs. 5000/- for carrying the parcels/carton. The Counsel of appellants also pointed out certain dissimilarities between copies of two sets of documents which had been given to him by the DRI. Further requested for cross examination was made of all the panchas, as well as the officers who signed the statements recorded and/or panchanama evidencing and recording of the panchanama and the statements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere being no complain of any duress or coercion, made before the Magistrate on 24/9/2011 when Shri BS & Shri RS were produced, as such their stand that the statement was taken under duress and coercion is wrong and by way of afterthought. Even in the retraction letter dt. 5.10.2011, sent by both Shri BS & Shri RS they have not alleged or stated anything regarding signing on blank papers at the instance of investigating officers. So far the contention regarding misgiving in the panchanama raised by the appellants, as to the panchanama does not bear signature on each page of Shri BS & Shri RS, it was found that panchanama is running into 5 pages and on the last page both Shri BS & Shri RS have acknowledged, having received copy of the same. Further the signature of panchas and investigation officers was there on all pages and as such no malaise was found in the drawing of panchanama. Further it was found that there was no dispute regarding seizure of Iridium from Shri BS on 23.9.2011 at Mumbai Air Port, which have been certified to be Iridium (radio active substance) by BARC. As regards the issue of improper sealing of the bottles on 23.9.2011, it was found that vide letter dt. 19.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- (Rupees thirteen lakhs only) on KPS, Rs. 20,00,000/- (Rupees twenty lakhs only) each on Shri Bhupinder Singh and Shri Ravinder Singh under Section 112(a) of the Customs Act. 21. Being aggrieved the appellants are before this Tribunal. 22. heard the parties. 23. Having considered the rival contentions. I find that the Revenue have failed to exercise jurisdiction vested in them, as investigating officers failed to make inquiries and/or record statement from KPS who was found to be kingpin. Further, it appears that there was strong presumption, in view of the circumstantial evidence, and seizure of Iridium, which as per the Revenue is not available normally in India in such large quantity. As such based on assumption and strong presumption, the Revenue have held that the seized Iridium is smuggled, originated from outside India and brought into India by way of smuggling. Considering the totality of evidence brought on record it is evident that ail the three appellants were in league and have aided and abetted in possession and carriage of Iridium metal. Further the subsequent story made out of Shri Bhupinder Singh that he was only the carrier of the carton handed over by unkn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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