TMI Blog2018 (7) TMI 1607X X X X Extracts X X X X X X X X Extracts X X X X ..... BHAT AND MR. A. K. CHAWLA JJ. Present: Mr. Jayant K. Mehta, Mr. Punit D. Tyagi, Mr. Anush Raajan, Advs. for appellant. Mr. Sanjeev Narula, SSC for Customs. Mr. Manik Dogra, Adv. for R-2. S. RAVINDRA BHAT, J. (ORAL) 1. These two appeals under Section 130 of the Customs Act, 1962 [hereafter the Act ] challenged a common order of the Customs, Excise and Service Tax Appellate Tribunal [hereafter CESTAT ] which confirmed an adverse order, made against the appellants. 2. The facts are that on suspicion of mis-declaration and smuggling of contraband, the Customs authorities detained four containers, for which Bills of Entry (BOE) were filed on behalf of the one M/s. Shivani Industries. It was found that the containers were stuffed with cigarettes, radial tubeless tyres and premium brand foreign liquor. The BOEs were filed by Mr. Suman Kumar Jha, a G-Card holder for M/s. Rama Kant Sahu and the documents were apparently handed over to him by Mr. Malkiat Singh, proprietor of the importer (M/s. Shivani Industries). The involvement of one Mr. Inderjit Singh (the appellant in CUS.AA 157/2018) was also discerned. The goods were seized under Section 110 of the Act, and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misdeclared goods and a penalty of ₹ 10 crore has already been imposed on him. Shri Inderjeet Singh has helped Shri Malkit Singh when he approached him for guidance. There is no evidence to show that Shri Inderjeet Singh has gained illegally by helping Shri Malkit Singh. ii) The department has failed to bring anything on record to substantiate the allegation that appellant has done any act which can render goods liable for confiscation under section 111 or has abetted the alleged act. Accordingly he prayed that penalties Imposed on Shri Chadha and Inderjeet Singh may be set aside. 13. During the course of Investigation, we find that the Department has seized the laptop and mobile phones of Shri H S Chadha and lnderjeet Singh at the Delhi Airport when they were caught in an attempt to smuggle gold into the country. Scrutiny of the data showed clear evidence of the goods such as cigarettes (with brand name), food supplements and other goods which were later found concealed in the containers for which bill of entry were filed by Shivani Industries. Further, during the course of Investigation; it has been established that Shri Malkit Singh, proprietor of Shivani Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished in any credible manner between him and the alleged smuggling of contraband. Learned counsel, therefore, urged that the Court should interfere with the order of the CESTAT. 6. Mr. Anush Raajan, learned counsel for the appellant and the other appellant - Mr. Inderjit Singh submitted that he was a low paid employee and he had no knowledge of the smuggling activities given that whatever he did was at the behest of Mr. H.S. Chadha. The imposition of penalty to the tune of ₹ 1 crore was disproportionate. 7. The Commissioner who considered the request for cross-examination, stated as follows in the order-in-original while rejecting it: 64. Cross-examination of Sh. Suman Jha and Sh. Inderjeet Singh sought by Sh. Tarun Chawla, Advocate for M/s Shivani Industries, Noticee No.1 and its proprietor Sh. Malkiat Singh, Noticee No.4 has been rejected as the whole case is not merely based on the statements of Sh. Suman Jha and Sh. Inderjeet Singh but on other corroborative evidences specially in the form of documents, computer records recovered from various premises. Request for supply of unspecified non-relied upon documents has also been rejected as the same is absurd. Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus told that M/s K. Fortune General Trading Llc, PO Box 172884, Dubai exists merely on paper, he stated that it was not true while the Overseas Enquiry report received from DRI clearly confirms the view that M/s K. Fortune General Trading Llc, did not exist at the said address and he was thus using forged invoices/PL etc.. Mail dated 28.04.2014 exchanged between Sh. H.S. Chadha and Sh. Inderjit Singh regarding K.Fortune Rubber Stamp confirms and validates his role and involvement as mastermind in the whole scheme of affairs. 67.4.2 Scrutiny of the data retrieved from the mobile phone of Sh. H.S Chadha showed photo of goods i.e. food supplements, Cigarettes Mond, Gaudang Garam etc. imported by M/s Shivani Industries which were later seized by the Department on 27.06.2014. On being confronted with the said photos Sh. H.S. Chadha in his statement recorded on 25.08.2014 confirmed that these photos were taken from his mobile. It clearly proves 'that he had active knowledge of outright smuggling and the contents being imported in M/s. Shivani Industries in the name of Sh. Malkiat Singh. 67.4.3 Sh. H.S. Chadha is a regular offender and has been defrauding the exchequer by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deny his foreknowledge of Mr. Malkiat Singh. In the appeal he merely stated that he acted as a consultant. If those facts are taken into account, the emails (especially the email dated 28.04.2014 between Sh. H.S. Chadha and Sh. Inderjt Singh regarding KFortune General Trade LLC) exchanged with the foreign suppliers, pose more questions. In these circumstances, the plaintiff s request for cross-examination and its rejection by the Revenue cannot be characterized as violation of principles of natural justice. 10. As far as the appeal of Mr. Inderjit Singh is concerned, the Court is of the opinion that his involvement in the whole operation was also with knowledge. The fact that he was an employee of Mr. H.S. Chadha, in the opinion of the Court, does not in any manner absolve him of having contravened provisions of law which attracted penalty. Given that Section 112 of the Act, prescribed an outer limit of penalty amount equivalent to duty (which in this case amounted to over ₹ 10 crores), the imposition of penalty at the rate of ₹ 1 crore cannot be considered disproportionate. 11. No question of law arise in the appeals; they are consequently dismissed. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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