TMI Blog2017 (9) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling - Considering the totality of evidence brought on record it is evident that aal the three appellants were in league and have aided and abetted in possession and carriage of Iridium metal. All the three appellants have failed to explain adequately the source of acquisition of Iridium metal from any licit source within the country and as such the conclusion by Revenue that it is smuggled, is upheld. Further, in view of the factum of smuggling been proved by way of circumstantial evidence only, as the Revenue failed to interrogate the said KPS, the penalty imposed under Section 112(a) of the Act is on higher side - the penalty imposed, on Mr. KPS penalty is reduced from ₹ 30 lakhs to ₹ 5 lakhs and on Mr. Ravinder Singh from ₹ 20 lakhs to ₹ 2 lakhs and Mr. Bhupinder Singh from ₹ 20 lakhs to ₹ 50,000/-. Appeal allowed - decided partly in favor of appellant. - C/86372, 86373, 86374/2013-Mum - A/88968-88970/17/SMB - Dated:- 28-7-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Sanjay Chadha, Advocate for Appellants Shri S.J. Sahu (AR) for respondent ORDER Per: Anil Choudhary The appellants are in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Chinese origin to avoid detection; that the said three SMD Rework Stations (with Iridium concealed inside) was further packed in one carton and the said carton had been checked-in, in the name of Bhupinder for Mumbai; that the said Bhupinder was carrying the said smuggled Iridium for monetary consideration for delivery at Mumbai and the said Ravinder was the main brain in illegal procurement of smuggled Iridium. 4. Pursuant to receipt of the said information, the officers of Directorate of Revenue Intelligence, Mumbai Zonal Unit, Mumbai maintained surveillance at the conveyor belt bringing the baggage of Jet Airways Flight-9W-2205, arrived from Delhi, in the arrival hall at Chhatrapati Shivaji Airport, Santacruz, Mumbai on 23.09.2011. The said Bhupinder was intercepted by DRI officers after he had collected 2 pieces of checked-in baggage from the conveyor belt and had loaded them on a trolley. The said Bhupinder claimed the said two pieces of checked-in baggage as his own. On being asked about the said Ravinder, Bhupinder replied that Ravinder had gone out and would be waiting for him outside the arrival hall of airport. The said Ravinder was intercepted from outside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mm plier 1 5. As mentioned in Table-I above, 5 plastic bottles having gross weight 5500 gms., containing the 'Iridium metal weighing 5007.41 gms., were found to have been ingeniously concealed in 3 SMD Rework Stations of Chinese origin. On being asked to produce documents pertaining to purchase import of the said Rework Stations and Iridium metal , the said Ravinder and Bhupinder replied that they were not having any documents pertaining to purchase or import of the said SMD Rework Stations or of Iridium metal concealed thereof. The Iridium metal in 5 bottles having collective gross weight of 5500 gms. and provisionally valued at ₹ 1 Crore was seized under panchanama dated 23.09.2011 under the reasonable belief that it was smuggled into India and hence liable for confiscation under the provisions of the Customs Act, 1962. The SMD Rework Stations and instruments mentioned in the above table at Sr. No.2, 3 4 were seized as court exhibits. The said 5 plastic bottles containing Iridium metal were sealed in a separate cardboard carton. The other goods i.e. 3 SMD Rework Stations, the instruments mentioned in above table at Sr. No.2, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known to him since the last 12 years; that he had proceeded to domestic airport, Delhi with the said zipper bag and cardboard carton in a cab; that he was having a zipper bag containing clothes carried by him from his residence and one cardboard carton containing samples (3 SMD Rework Stations) given to him by Kanwal, at the time when he was dropped by Kanwal; that he had received SMS on his mobile phone pertaining to PNR No. for the said flight from Kanwal; that he had collected the boarding card for the said Jet Airways flight by checking-in the said cardboard carton and zipper hand bag for Mumbai. On being specifically asked as to whether any other person accompanied him to airport or in the said flight, Bhupinder interalia Stated that he had boarded the said Jet Airways flight at Delhi; that he had come across Ravinder after boarding the said flight in Delhi; that the said Ravinder was known to him as uncle of his employer i.e. Kanwal who was the son of the elder brother of Ravinder viz. Sardar Inderjeet; that he had known the said Ravinder since year 2002. On further query regarding whether the said Ravinder telephonically contacted him prior to boarding the Jet Airways flight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed powder stated to be Iridium metal contained in 5 plastic bottles and concealed in the said 3 SMD Rework Stations; that he had been in the business of trading of mobile phone accessories since year 2004 in tine name and style of M/s. PAL Software; that he had also been in the business of importing and trading unbranded mobile phones in the name and style of M/s. Gold Manner Overseas (IEC No.0509085687) floated in the year 2009. On being specifically asked about the names of his siblings, Ravinder stated that Sardar Nirmaljeet Singh was his elder brother and Mrs. Paramjeet Kaur was his elder sister; that he had no other siblings. 9. Further Statement oi Shri Ravinder Singh was recorded under Section 108 of the Customs Act, 1962, on 24.09.2011 wherein he interalia confirmed his earlier Statement dated 23.09.2011, mentioned at Para 6 above and added that he had two brothers namely Sardar Inderjeet Singh and Sardar Nirmal Jeet Singh that Shri Kanwalpreet Singh was his nephew and son of his brother Shri Inderjeet Singh; that the said Kanwalpreet Singh was the proprietor of M/s. Sato India; that the said Bhupinder was an employee of M/s. Sato India which was owned by Kanwal. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys flight; that he was on pilarimage to Sikh religious places and was to go to HUZUR SAHEB, Nanded; that he was detained by DRI officers outside airport; that DRI officers had taken him back to airport arrival hall and had searched him, It was also alleged that he was badly beaten in DRI office; that DRI officers recorded his Statement which was typed in English and his signatures were forcibly taken on the same; that the statement recorded by DRI officers was not his voluntary statement. As mentioned in Para 9 above, the matter was examined in DRI office and the allegations were found to be false and incorrect. A rebuttal dated 12.10.2011 (as mentioned in Para 11.2 below) was issued. 11.2 In connection with the retraction of the said Bhupinder and Ravinder, DRI examined the matter and found the allegations to be false and without merit. The said Bhupinder and Ravinder were produced before the holiday Magistrate on 24.09.2011 but no complaint of any maltreatment or assault was made. If they had any grievances, it could have been mentioned to the magistrate. Not having made any such complaint before the magistrate, such allegations afterwards appeared to be merely an afterthought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(2) (Solid Powder) Grey Iridium Metal 2(1) (Solid Powder) Grey Iridium Metal 2(2} (Solid Powder) Grey Iridium Metal 3(1) (Solid Powder) Grey Iridium Metal 13. For further investigation, Summons dated 26.09.2011 was issued in the name of Shri Kanwalpreet Singh seeking his presence in DRI office, Mumbai, on 04.10.2011 for giving evidence and for submitting documents pertaining to import of SMD Rework Station and Iridium. In response to Summons dated 26.09.2011, Shri Kanwalpreet Singh sent a letter, received in DRI office on 10.10.2011, wherein it was intimated that the said Summons was received at his residence on 03.10.2011; that he was on pilgrimage/ business trip; that he would be available in Delhi on 18.10.2011. It was further intimated that he had learnt from his uncle Ravinder about seizure of the goods from his employee; that he had sent the said Bhupinder to accompany his uncle for pilgrimage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tch 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 specifically asked as to whether they had ever placed an order for any kind of rework stations, Shri Mahesh Wadhwa stated that they were in the business of trading electronic parts and were not in need of any equipment such as rework stations; that they had never placed any order for any rework stations. On being informed that the said Bhupinder was found to be in possession of 3 SMD Rework Stations of Chinese origin on 23.09.2011 for delivery to his firm i.e. M/s. Shaktee Electronics, he stated that they had not placed any order for any such rework stations. On being informed that 5 plastic bottles containing Iridium metal was found concealed in the said 3 SMD Rework Stations and on being asked as to whether he had placed order for the said SMD Rework Stations or for iridium metal or for both, he stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 landing of Jet Airways flight at Mumbai Airport. Scrutiny of the said calls indicated that Ravinder had made incorrect statement with regard to his relationship with Kanwal intended to misguide the investigation. The fact with regard to booking of air tickets of Bhupinder and Ravinder for Jet Airways flight dated 23.09.2011 by the same travel agent on 22.09.2011 simultaneously indicated that it was pre-planned for delivery of smuggled Iridium at Mumbai. 18.1. During the investigation CDR of mobile numbers 9818709821 9811258090 used by Kanwalpreet Singh, as per Statement of Bhupinder recorded on 23.09.2011 and other investigations, was obtained from the service provider. Extract of the calls made/received by Shri Kanwalpreet Singh from 15.09.2011 to 23.09.2011 on Mobile No. 9818709821 98112 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ₹ 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 of the accused/appellant, relied upon by the Revenue. The show cause notice was adjudicated vide the impugned order and it was found that the tickets for travel from Delhi to Mumbai on 23.9.2011 for appellant Shri BS Shri RS were booked by the same travel agent at Delhi at about 21.30 hrs. Further from the call data records of all the three appellants it was evident that they were in constant touch with each other during the last 5-7 days and also on 23.09.2011. Further, call data record Shri Kanwalpreet Singh (KPS) revealed that he was regularly talking co his contacts in China Hong Kong. As such, it was concluded chat Shri KPS is the main person or the Kingpin in the alleged smuggling of Iridium. Further, Shri KPS did not respond to summons sent on five occasions, seeking his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation 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. 19.10.2011 issued by DRI. to BARC, reference to 5 plastic bottles sealed with DRI seal and Panchanama dt. 25.8.2011 and BARC reference to carton bearing a white label, with signature of two punch witness. It was concluded there is no discrepancy with regard to sealing of the 5 bottles seized from the appellants. So far retraction statement of appellant Shri BS RS is concerned it was held that the same are by way of after thought and in order to save themselves. It is evident from the fact that in subsequent statements before the investigating authority Shri BS Shri RS admitted that the retraction statement was made under legal advice. Relying on the ruling of the Hon'ble Supreme Court in the case of Collector of Customs Vs. D. Bhoormall 1983 (13) E.L.T. 1546 wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue 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 unknown person outside Delhi Airport, which he undertook to carry for monetary consideration ₹ 5,000/- is palpably not believable. Further, the corroborative evidence does not support this version. Under the facts and circumstances, I hold that all the three appellants have failed to explain adequately the source of acquisition of Iridium metal from any licit source within the country and as such the conclusion by Revenue that it is smuggled, is upheld. Further, in view of the factum of smuggling been proved by way of circumstantial evidence only, as the Revenue failed to interrogate the said KPS, I find that the penalty imposed under Section 112(a) of the Act is on higher side. I allow the appeal in part by reducing the penalty imposed, on Mr. KPS pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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