TMI Blog2019 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... nded counterfeit spectacles and some other goods were imported by Shri Bhupesh Tyagi of M/s Swastic Trading Company and Director of M/s Royal D cor India Pvt. Ltd. He has been helped in this work by one Shri Sanjeev Singh Yadav and the work relating to clearance of the cargo was undertaken by CHA namely Shri Sunil Kumar of M/s Mouli Worldwide Logistics. It appears from the record that Shri Sunil Kumar has never interacted with the high sea sale buyers of the goods namely Shri Sanjay Gupta Director of M/s Sanco Industries Ltd. It is found that when the consignment was undertaken for examination and it was detected that the import consignment has been mis-declared and contains prohibited items, such as, fireworks etc. he has informed Shri Sanjeev Singh Yadav and also spoke to Shri Bhupesh Tyagi, however, he did not inform the customs authorities regarding the mis-declaration of the cargo. We also find that all the above appellants in their various statements have confessed to their involvement or have confessed to their misdoings which is also corroborated with the facts of the case. In this case, all the statements of the relevant persons get corroborated by the statements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nels 12 inch Vega Mark 1224.60 Telescopic Channels 20 inch Vega Mark 1955.10 Calcium Carbonate 11500 Gogo fireworks K0201 (Made in China) 6710 Telescopic Channels 10 Inch 700.70 2. BLJU 2750050 Telescopic Channels 12 inch 1057.30 Telescopic Channels 14 inch 1400.60 Telescopic Channels 16 inch 1430.80 Telescopic Channels 22 inch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta, Director of M/s Sanco Industries Ltd. who is a bonafide user of calcium carbonate in manufacture of PVC compound, PVC pipes etc. The only purpose of entering into the high sea sale agreement with M/s Sanco Industries Ltd. by Shri Bhupesh Tyagi and Shri Sanjeev Singh Yadav was that since M/s Sanco Industries Ltd. being actual user of the calcium carbonate, they were entitled for high level of facilitation and thus there were lower chances of examination of the cargo by virtue of the importer being an actual user of the declared cargo namely calcium carbonate. In the modus-operandi planned by Shri Bhupesh Tyagi and Shri Sanjeev Singh Yadav, Shri Sunil Kumar of the CHA firm namely M/s Mouli Worldwide Logistics was also involved as he has to undertake clearance of the mis-declared cargo. During the course of investigation it has also been noticed that Shri Bhupesh Tyagi has also imported three more consignments which were covered under the bill of lading No. QSAY 6004442 dated 25 October 2015, SHZAD 1510371 dated 27 October 2015 and OOLU 2565964890 dated 20 October 2015 these goods were also to be cleared following the above-mentioned modus operandi, however, since no bill of ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplosives Rules, 2008 ; (3) The seized goods i.e. mis-declared telescopic channel (16.948 M.T.) having determined value of ₹ 1,90,654/- as per Chart-A and Un-declared telescopic channel (11.900 M.T.) having determined value of ₹ 9,89,663/- as per Chart B are confiscated absolutely under Section 111 (m) and Section 111 (f) respectively of the Customs Act ; (4) The seized declared goods i.e., as Calcium Carbonate 56.500 M.T. as per Chart-A and 31.760 M.T. as per Chart-B having determined value of ₹ 3,72,554/- and ₹ 2,09,521/- respectively are confiscated absolutely under Section 119 of the Customs Act, 1962 ; (5) The seized Un-declared goods i.e., Shoes (7116), Spectacles (Counterfeit Ray Ban 23800 pcs.), Spectacles Cover(10232 pcs.), Buffing Pad (500 pcs.), Machine (Forobo 1 pc.) having determined total value of ₹ 20,21,102/- taken together as per Chart-C are confiscated absolutely under Section 111 (d) and Section 111 (f) of the Customs Act, 1962 ; (6) Penalty of ₹ 50,00,000/- (Rupees Fifty Lakh only) is imposed on Shri Bhupesh Tyagi (Proprietor of M/s Swastic Trading Co. and Director of M/s Royal D cor Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mis-declared goods. It has further been added that Shri Yadav came to know about the mis-declaration of the import cargo from Shri Sunil Kumar CHA after the import consignment was put for examination by the officers of DRI. It has further been added that it is wrong on the part of Shri Tyagi to allege that Shri Sanjeev Yadav had introduced Shri R.K. Agarwal (China based supplier of fireworks) to Shri Bhupesh Tyagi rather it was Shri Tyagi who introduced Shri R.K. Agarwal (exporter of fireworks) to him. It has thus been impressed upon that neither prior to commission of offence nor at the time of the commission of the offence on 2 November 2015 Shri Sanjeev Yadav had any knowledge of the mis-declaration of the import cargo. It has further been added that the amount of ₹ 5 lakhs received from Shri Bhupesh Tyagi was for payment of customs duty/penalty liability and same was deposited to the custom authorities vide TR-6 challan No. 33998 dated 18 November 2015. It has further been added that Shri Sanjeev Singh Yadav is in nowhere concerned with mis-declaration made by M/s Royal D cor India Pvt. Ltd., wherein the consignment was found to contain spectacles fireworks, telescopic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the containers which were lying in the internal container depot for which no bill of entry was filed consignments were detected to have branded counterfeit spectacles and some other goods were imported by Shri Bhupesh Tyagi of M/s Swastic Trading Company and Director of M/s Royal D cor India Pvt. Ltd. He has been helped in this work by one Shri Sanjeev Singh Yadav and the work relating to clearance of the cargo was undertaken by CHA namely Shri Sunil Kumar of M/s Mouli Worldwide Logistics. 9. It s also a matter of record that appellant Shri Bhupesh Tyagi and M/s Royal D cor India Pvt. Ltd. (a company having Shri Bhupesh Tyagi as one of the Director) did not participate in the adjudication proceedings in spite of the fact that more than a ten opportunities of personal hearing were accorded to them. We find that Shri Bhupesh Tyagi has confessed that he has hatch a conspiracy to illegally import fireworks by mis-declaring the same and by concealing the same in the consignment of calcium carbonate. It is also apparent from the proceedings and investigations that the consignment which were imported in the name of M/s Royal D cor India Pvt. Ltd. were lying pending for clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that all the above appellants in their various statements have confessed to their involvement or have confessed to their misdoings which is also corroborated with the facts of the case. 10. We find that Hon ble Supreme Court in case of Naresh J. Sukhawani versus Union of India reported under 1996 (83) E.L.T. 258 (S.C.) has held as follows :- 4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and imposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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