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TMI Blog2017 (11) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... Lucknow v. Shailesh Kumar Gupta 65-68/CUS/APPL/LKO/2017 Penalty NIL C/Stay/70165/2017 C/70308/2017 Lucknow v. Ajay Kumar Gupta 65-68/CUS/APPL/LKO/2017 Penalty 75,000/- C/Stay/70166/2017 C/70309/2017 Lucknow v. Annapurna Udyog 72-75/CUS/APPL/LKO/2017 Penalty NIL C/Stay/70167/2017 C/70310/2017 Lucknow v. Ajay Kumar Gupta 72-75/CUS/APPL/LKO/2017 Penalty 1,00,000/- C/Stay/70168/2017 C/70311/2017 Lucknow v. Mithilesh Kumar Gupta 72-75/CUS/APPL/LKO/2017 Penalty NIL C/Stay/70169/2017 C/70312/2017 Lucknow V. Sushil Kumar Agarwal 72-75/CUS/APPL/LKO/2017 Penalty 1,00,000/- C/Stay/70170/2017 C/70313/2017 Lucknow v. Bundelkhand Dal Mill 76-77/CUS/APPL/LKO/2017 Penalty NIL 2. The brief facts of the case are that export of pulses/lentils from India is prohibited vide DGFT No.15 (RE 2006)/2004 09 dated 27/06/2006 (as amended). There was intelligence received that huge quantity of pulses has been exported to Nepal on tractor trolleys and trucks illegally through off routes, located at the Indo Nepal border. Pursuant to the investigations and enquiries made by revenue, show cause notices were issued. It is alleged in the said show cause notices that revenue id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the payment of the said goods. He further stated that in the end of Financial Year 2011 12, some Dal Mill owners approached him and channeled the payments regarding goods invoiced to his firms through his bank account. Further, his role in the whole picture is to provide Form- F of VAT from West Bengal to the Dall Mill owners for the bills issued in the name of his firms in lieu of the Rs. 3-5/ Quintal of pulses. This aspect was stated elaborately in the statement recorded. The copies of bills were resumed by the DRI, Siliguri under panchnama dated 18th June, 2012. He used to prepare the VAT returns to be filed by his firm on basis of details provided by the Dal Mill owners and the subsequent sale of all such purchases by his firm were shown on cash, which is only in his returns and such cash voucher sale entries were made in his computerized account. Further, regarding resumed copies of F Forms, he stated that he filed the said returns to the West Bengal Commercial Tax Department and the Annexure F of the said return had the details of interstate purchase from said Dal Mills of Kanpur. The said purchases were not received in physical form and the details of bills were provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per truck and report to the Dal-Mill along with the GRs. Rest of the details in the GRs were filled by the Dal Mill only and the agreed freight is paid by the Dal Mill or the consignee as per their contract/agreement. He acted as an underwriter for the safe movement of the consignment from Dal Mill to the delivery point. He further stated that he had never received any complaint/claim report for non-delivery of goods or non-payment of freight. Statement of one Mohit Agarwal, Proprietor of M/s Agrawal Freight Carriers, Kanpur was recorded wherein he stated that his firm had provided transport to different Dal Mill owners of Kanpur during the relevant period 2009 2012 on commission basis @ Rs. 150-300 per truck on receipt of requirement by Shri Ajay Gupta or the Dal Mill Staff and after negotiating the freight they provide the copy of GR, mentioning the firm name and instruct the driver to report to the Dal Mill. On being confronted with the statements of Shri Ajay Gupta and Shri Sushil Agarwal, Siliguri, he stated that he had never received any complaint for non-delivery of goods or non-payment of freight. Similar statements were given by Shri Varinder Singh, Proprietor of M/s Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sushil Kumar were VAT registered and filed the commercial tax returns at West Bengal and issue form F to the Dal Mills, against such sales shown to them. He further stated that although he was instrumental in procuring orders, ensuring delivery and getting the payments of such consignments at Indo Nepal border, but he is not knowing the mode of transshipment across the border, as the drivers of transport receive such instructions directly from the Indo Nepal based traders. Further, statement of Sushil Kumar Agarwal was recorded on 24th June, 2015, wherein he stated that he have made payments through his Allahabad Bank and Standard Chartered bank accounts by demand draft and RTGS during the financial year 2009 10 to 2011 12. He also stated that the sale was made by both their concern to mill directly and informed the payment details to him. He raised bill in this respect and made entry of the same in his ledger. He also stated that no broker/middlemen between him and he also stated that pulses, which were sold directly by both him and Bundelkhand Dal Mill was also delivered at Bihar area of Nepal border and the same might be delivered in Nepal. 8. It appeared to revenue that Sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act on the Dal Mill owners, Sushil Kumar Agarwal, Ajay Kumar Gupta and others, more fully stated in the table above. 9. Aggrieved by the said orders, the respondents herein preferred appeal before learned Commissioner (Appeals) who vide the impugned Orders-in-Appeal have been pleased to hold that imposition of redemption fine, is not sustainable on the ground that goods should be available either physically secured by bond for having been provisionally released earlier, at the time of passing of order of confiscation. Further, as pulses were never seized by the Department, in case of payment of redemption fine from the appellant, Department cannot return the confiscated quantity of pulses. Further, held that no penalty is impossible upon Bundelkhand Dal Mills and other Dal Mills, as none of the Dal Mill owners were engaged in the act of smuggling. Further, it is nowhere alleged in the show cause notice that Dal Mill owners were making any monitory gain by resorting to such activities. Penalty on respondent Shri Sushil Kumar Agarwal had been reduced to the tune of Rs. 1,00,000/- and he would have received a maximum commission of Rs. 1,75,710/- @ Rs. 5/- per Quintal. The learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned A.R. for revenue that learned Commissioner (Appeals) has overlooked the fact with regard to the statement of Ajay Gupta, duly corroborated by the statement of Sushil Kumar Agarwal, which confirms that his firm did not have any godown, that he never received the pulses physically invoiced to him by the Dal Mills, he used to receive papers/invoice regarding such Dal consignments on commission of Rs. 5/- per Quintal in respect of all such transactions, that he received invoice or the bill pertaining to about 20,000MTs of pulses from Kanpur based Dal Mills. Accordingly, learned Commissioner have erred in holding that Bundelkhand Dal Mill and other Dal Mills are not liable to penalty under Section 114 of the Customs Act. Further, it is urged that pulses were not available for seizure/confiscation, does not establish that goods were not smuggled. Accordingly, the goods were liable for confiscation under Section 113 (d) of the Act, and the confiscation was not possible, the goods were physically not available and further penalty under Section 114 of the Act is maintainable. 11. Having considered the rival contentions, I find that there is no seizure of the pulses, even in small qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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