TMI Blog2018 (1) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... part, for which 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:- 17-1-2018 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri Somesh Arora, Shri V R Sethi, Shri Rishab Nagar, Shri D S Nagi, Advocates for the Appellants Shri R K Manjhi, AR for the Respondent ORDER Per : (Dr.) Satish Chandra The present appeals have been filed against Order in Original No.01/2017 dated 14.2.2017. 2. The brief facts of the case are that on 26.4.2011, intelligence report was received that M/s. Naresh Hand Work, a proprietary concern of Shri Naresh 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding the involvement of his client. For the purpose, he relied on ratio laid down in the following case laws: (i) Amar Jyoti Packers Vs. CCE [2007 (207) ELT 345 (Del)]; (ii) J B Trading Corporation Vs. UOI [1990 (45) ELT 9 (Mad)]; (iii) K Sons Overseas (I) P Ltd. Vs. CC Mumbai [2001 (132) ELT 93 (Tri-Mum)]; (iv) Hamid Fahim Ansari Vs. CC (Import) [2009 (241) ELT 168 (Bom)]; (v) Bimal Kumar Mehra Vs. CC (Import) [2011 (270) ELT 280 (Tri-Mumbai)]; (vi) Dhirubhai N Sheth Vs. CC (P) Bombay [1995 (75) ELT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs clearance. The role of both the appellants in the case was to hand over the papers and a packet containing money for custom duty and shipping line charges as received from Shri Kshitiz Sharma / Manish Khanna, toShri Sandeep Rekhi of CHA firm. He submits that his clients are totally innocent. The role 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 in the eyes of law as per the ratio laid down in the following cases:- (i) J K Syntehtics Ltd. Vs. CC [2015 (317) ELT 370 (T)]; (ii) Pankaj Baba Saini Vs. CC [2015 (316) ELT 164 (T)]; (iii) Solly PErumal Vs. CC [2013 (291) ELT 66 (T)]; (iv) Associated Clearing Agency Vs. CC [2010 (258) ELT 395 (T)]; (v) V K Singh Vs. CC [2015 (253) ELT 685 (T)]; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vaded 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 had friendly relationship with Shri Neeraj Chaudhary, who had requested him to assist Shri Nikhil Dhingra for the imported consignment. Statements of various persons involved were recorded including Shri Sandeep Rikhi, who in his statement dated 30.5.11 stated that he has handed over the documents and amount of duty and shipping line charges in cash to Shri Neeraj Chaudhary, who had further handed over the documents to Shri Sunil Yadav, G-card holder of M/s. Shivoy Enterprises for filing the Bill 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 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 of smuggling / mis-declaration, which was committed by Shri Naresh Kumar, proprietor of firm, 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 handed over these papers to Shri Sandeep Rikhi for clearance, who in his statement dated 30.5.11 has stated that he had handed over the documents and duty amout to Shri Neeraj Choudhary, who further handed over the documents and money to Shri Sunil Yadav, G-card holder of M/s Shivoy Enterprises for filing the Bill of Entry. 21. From the whole episode, it appears that none of the appellant has tried to know what is the real content in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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