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TMI Blog2018 (7) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... certain documents were resumed under panchnama dated 16/11/2011. The statement of the said Shri Ajay Gupta was recorded on 25/11/2011 & 29/11/2011 wherein he deciphered the documents recovered from his premises. Mr. Gupta further stated that he was engaged in the brokerage of pulses, cattle feeds and edible oil. His main clients were in Bihar, Bengal and Uttar Pradesh. He was having five trucks and the same are engaged in transportation of grains etc. from Kanpur to Bihar. The consignments are also dispatched on the orders of Nepal based purchasers, namely, Shri Mukesh Aggarwal, Shri Umesh Aggarwal of Birgunj, Shri Raju Agarwal of Viratnagar and the carriers/traders based at Raxaul, Areraj, Barganian, etc. at Bihar-Nepal border, who get the consignments cleared from Kanpur based Dal Mills under the bills consigned to Silliguri based traders and the same were unloaded at the border. The payments are often received in cash/demand drafts etc. through him or through RTGS with intimation to him. It further appeared that the said commission agent was procuring pulses for Bihar/Nepal based dealers from many Dal mills including M/s Annapurna Udyog, Kanpur. The consignments were dispatched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sales and sales to his firm, he stated that the same and not through his firm. He further stated names of several Dal Mills, who were doing the same dealings with his firm, that is, issuing bills, in the name of his firm, procuring Form F and not actually supplying the goods to him. He was told that they were getting benefit for their Ex-UP sale and accordingly, he was receiving Rs. 3-5 per Quintal of pulses invoiced in the name of his firm. The said commission, he was receiving in cash form, from the Dal Mill owners. He further stated that he was not having the knowledge that the goods consigned in the name of his firm were illegally crossing into Nepal Border. He further submitted, sales tax returns for the Financial Years 2009-10, 2010-11 and 2011-12 submitted by M/s Mayank Traders and M/s Shiv Dutt Sushil Kumar, Siliguri wherein the details of the sales of pulses shown by Kanpur based Dal Mills was reflected. 4. M/s Bundelkhand Dal Mills, Kanpur submitted documents, such as- sales invoices, Party Ledger Accounts and the Bank Statements, showing the payments of the sale proceeds for the said sales related to the sale of pulses to the customers based at Bihar and West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lines, Kanpur. 6. Statement of Shri Mithlesh Gupta, partner M/s Annapurna Udyog, Kanpur was recorded on 24.10.2013, wherein he stated that the firm is engaged in manufacture/processing/trading of pulses within India. Shri Ajay Gupta the proprietor of M/s Ajay & Co. have engaged many brokers for the sale and purchase of pulses. On being confronted with the documents resumed from the premises of Shri Ajay Gupta, he stated that his firm had never dealt with Shri Sushil Kumar of Shiv Dutt Sushil Kumar, as he is a consignment agent of his firm and its firm used to receive the C and F forms. He further stated that it is mandatory to issue bills/invoices of pulses for the insurance and 9R form issued by Mandi Samiti, U.P. Therefore, the consignments of pulses diverted to Bihar were covered by the invoices, way bills, 9R forms, insurance cover notes, consigned in the name of VAT registered firms of Siliguri. On being shown the statement of bills/invoices issued covering the consignment of pulses to M/s Shiv Dutt Rai Sushil Kumar, Siliguri along with their corresponding payment details as per his ledger duly supported by the bank account statements of M/s Annapurna Udyog, Kanpur, he state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of M/s Mayank Traders, Siliguri was supporting in supply of pulses to Nepal by way of managing the records of sale. Actually, it was bogus sale and all the pulses were supplied in contravention of provisions and restrictions imposed on export of pulses. The modus operandi appeared to be as follows: - (i) Procuring orders from Nepal based customers, having establishments in both countries, and based at Indo Nepal Border, by commission agent. (ii) Dal Mills to issue invoices, 9R forms, insurance notes covering the above mentioned negotiated consignment in the name of VAT Licensed dealers based at Siliguri namely M/s Mayank Traders/ M/s Shivdutt Rai Sushil Kumar. (iii) Arrangement of transport to have the GRs in the name of Siliguri based VAT Licensee dealers along with instructions to deliver the consignments of pulses dispatched to the carrier at the appointed place and person located nearby to the Indo Nepal border and gets the freight from them in cash only. (iv) The said delivered consignments to be crossed over the border in the tractor trolleys, headloads etc. through the transport to Nepal from India. Accordingly, it appeared that M/s Bundelkhand Dal Mills, and others, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed transportation of the pulses on the strength of the invoices in the name of the customers. He also undertakes responsibility to collect the payment from the customers and handover to Dal Mill owners. Dal mill owners have never asked them about the dispatched consignment of pulses to Nepal. Secondly, it has not been alleged, anywhere in the show cause notice that Dal Mill owners were making any monetary gains by such activities. Accordingly, the learned Commissioner (Appeals) held that Dal Mill owners were never engaged in the activity of smuggling and accordingly, no penalty is imposable upon them under Section 114 (i) of the Customs Act, 1962. So far as penalty is concerned on Ajay Gupta, it was observed that penalty should be determined on the basis of quantum of offence committed, the financial position of the person and most importantly, the monetary gain related with said activity, as smuggling is a financial offence. It was held that it is not proved that Ajay Gupta and Sushil Kumar Agarwal themselves have directly attempted to smuggle the goods. The main charge against appellant-Ajay Gupta is that he has some links with the Nepal based traders, having their establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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