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Shri Sandeep Rikhi, Shri Nikhil Dhingra, Shri Rajinder Dhingra, Shri Kshitiz Sharma, Shri Manish Khanna, Shri Neeraj Chaudhary Versus Commissioner of Customs, New Delhi

2018 (1) TMI 833 - CESTAT NEW DELHI

Smuggling - mis-declaration of imported goods - the department is of the view that Shri Sandeep Rikhi was actively involved in clearance of impugned consignment and that the statement of various witnesses corroborated one another to sustain the chain of events - Held that: - it appears that M/s. Naresh Hand Work, a proprietary concern of Shri Naresh Kumar had imported the bags in which cosmetics, readymade garments, mobile phone housing etc. were stored. The present case, undoubtedly is a case o .....

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they are entitled for punishment. - the main culprit is Shri Naresh Kumar, proprietor of M/s. Naresh Hand Work, who was having the full knowledge. The present appellants have just facilitated in a mechanical way the attempt of smuggling the goods - penalty, being on higher side, is reduced. - Appeal allowed in part. - Customs Appeal Nos.50516, 50825, 50826, 50849 of 2017 Customs Appeal Nos.50963, 51268, 51839 of 2017 Customs CO/50976/2017 - Final Order No.50167-50173 /2017 - Dated:- 17- .....

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Kumar had cleared the goods by mis-declaration from ICD, TKD. On 30.4.2011, in the presence of panch witnesses, goods were examined where it was found that the goods were imported vide Bill of Entry dated 25.4.2011 through CHA M/s. Shivoy Enterprises, have 7495 pieces of Multi Utility Bags. But in the bags, it was found that there were 433 boxes /plastic sacks which were stuffed in the said container with items of cosmetics, ready made garments and mobile phones housing etc. It was found that in .....

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10 lakh under section 112(a) Rs.5 lakh under section 114 AA 2 Shri Manish Khanna Rs.10 lakh under section 112(a) Rs.5 lakh under section 114 AA 3 Shri Nikhi Dinghra Rs.5 lakh under section 112(a) Rs.2.5 lakh under section 114 AA 4 Shri Rajinder Dhingra Rs.5 lakh under section 112(a) Rs.2.5 lakh under section 114 AA 5 Shri Neeraj Choudhary Rs.5 lakh under section 112(a) Rs.2.5 lakh under section 114 AA Appeal No. 50849/2017 (Shri Kshitiz Sharma) 3. With this background, regarding Shri Shitiz Shar .....

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offence. 4. At the strength of written submissions, he submits that the appellant is owner of M/s. B B Scooter Club, Rajouri Garden, New Delhi and had no money for a transaction with Shri Nikhil Dhingra and Shri Rajinder Dhingra. He submits that his client did not know M/s. Naresh Hand Works and there was no financial dealings with this firm. His client stated in his statement dated 2.6.2011 that he knew Shri Nikhil Dhingra to whom he has given documents. No evidence is with Department regardin .....

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LT 697 (Tri)]; and (vii) Ashwin S Mehta Vs. CC Mumbai [2006 (197) ELT 386 (Tri-Mum)] 5. On the other hand, the representative of the department has relied on the impugned order and submits that Rajinder Dhingra was previously into clearing cargo business and was holding G-Card and he worked as CHA for sometime. Shri Kshitiz Sharma and Shri Manish Khanna have given him some papers for Customs clearance. He submits that on the Bill of Lading relating to the impugned container, the name of the ship .....

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hri Kshitiz Sharma and Shri Manish Khanna gave him papers regarding container in question for customs clearance, but since he had left this job, he gave all these papers to his nephew Shri Nikhil Dhingra, who had met Shri Kshitiz Sharma and Shri Manish Khanna in the club run by them in Rajouri Garden, New Delhi. In view of the above, it was observed in the impugned order that Shri Rajinder Dhingra and Shri Nikhil Dhingra were involved in smuggled / imported of the goods. 7. Shri Nikhil Dhingra, .....

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him. He filed Bill of Entry in respect of said container on the basis of documents which were handed over by Shri Naresh Kumar and Shri Kshitiz Sharma. 9. Learned Counsel Shri V R Sethi appearing for the appellants, at the strength of written submissions, submits that Shri Naresh Kumar, is the owner of M/s. Naresh Hand Works, New Delhi. His client has prepared Bill of Entry on the basis of documents supplied by Shri Manish Khanna and Shri Kshitiz Sharma through his Uncle Shri Rajinder Dhingra, .....

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of the appellant is just to pass on the papers, money relating to Customs duty and shipping line charges to ultimate CHA. Shri Nikhil Dhingra in his statement dated 25.5.11 categorically stated that he came to know about mis-declaration only after detection by SIIB. He did not know about the mis-declaration. He just pass over the papers, Nikhil Dhingra, gave to Shri Sandeep Rekhi for clearance. He submits that penalties levied on Shri Nikhil Dhingra and Shri Rajinder Dhingra are not sustainable .....

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by the importer / exporter. The appellants are not even CHA who have passed over the documents to CHA. Appeal No. 50963/2017 (Shri Manish Khanna) 11. Shri D S Nagi, learned Advocate, at the strength of written submissions, submits that his client has declined to own the goods as he is not the owner. It is the allegation that Shri Kshitiz Sharma and Shri Manish Khanna have given the papers to Dhingra as stated earlier. Shri Naresh Kumar, Proprietor in his statement dated 28.4.11 and 6.1.12 state .....

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participated in fraud to the exchequer. 12. Shri D S Nagi, learned Advocate further submits that his client was not involved in said smuggling of goods. He had not imported the goods or paid for it. There is absolutely no documentary evidence against him. The appellant was penalized solely on the statement of three co-accused. Except the statements, there is no evidence to corroborate the statement of co-accuse. 13 He further submits that both the co-noticee (Rajinder Dhingra (Noticee No. 7); a .....

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penalty against the appellant may kindly be dropped. 14. On the other hand, learned departmental representative submits that Shri Manish Khanna has acted as a master mind to smuggled goods and evaded payment of duty thereon. The statement of co-noticee indicated that Shri Manish Khanna is corroborating and playing the architect of fraud to exchequer. Appeal No. 50516/2017 (Shri Sandeep Rikhi) 15. Shri Sandeep Rikhi was an employee of M/s. Weiss Rohlig India (a freight forwarding company) and ha .....

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of Entry. The cash received by him was shipping line charges given to Shri Neeraj Choudhary for getting the customs clearance done. He had acted only with Shri Nikhil Dhingra. 16. Learned Counsel for the appellant, Shri Somesh Arora, at the strength of written submissions submits that his client is innocent, the cryptic order was passed by the adjudicating authority. He also submits that there is violation of principles of natural justice. Penalties are unwarranted. He submits that no documents .....

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cerned person. He further submits that Shri Nikhil Dhingra was having the knowledge. He also submits that in the smuggling of goods, there were 9 to 10 persons. But in the instant case, such connection has not been proved by the Department. Lastly, he also relied on the ratio laid down in the following cases: (i) Anil Products Ltd. Vs. CCE, Ahmedabad [2010 (257) ELT 523 (Guj)]; (ii) CCE Indore Vs. Engineers Combine [2009 (15) STR 473 (Tri-Del)]; (iii) Anil Rai Vs. State of Bihar [2009 (13) STR 4 .....

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aj Choudhary. After receiving the documents, he handed over them to Shri Sunil Kumar Yadav, G card holder of M/s. Shivoy Enterprises. He know Shri Sunil Kumar Yadav for last one year; that entire amount was paid through Punjab National Bank for customs duty. The same was given to him by Shri Neeraj Choudhary. He received the amount from Shri Nikhil Dhingra. 18. So, the department is of the view that Shri Sandeep Rikhi was actively involved in clearance of impugned consignment and that the statem .....

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who had imported the goods. In this attempt, all five persons have played their own vital role. 20. Shri Kshitiz Sharma and Shri Manish Khanna have given some papers for customs clearance to Shri Rajinder Dhingra and Shri Nikhil Dhingra. Before handing over all the papers, they have not examined the contents. If there was some doubt, they might have asked and examined the sample of the goods, but they have just passed on the papers. Shri Nikhil Dhingra who is nephew of Shri Rajinder Dhingra had .....

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