TMI Blog2022 (11) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been done without the active connivance of the CHA M/s Jai Impex - there has been no interrogation with the CHA for facilitating import by Sh. Rajan Arora by using the IEC code of Sh. Amit Nagi, without proper authorisation. There is no active role played by these appellants save and except facilitating the use of IEC code of M/s Dev International by another for some monetary consideration - the penalty of Rs. 12 lakhs on Sh. Amit Nagi under Section 112(a) is reduced to Rs.50,000/- - appeal allowed in part. - Customs Appeal No. 51075 of 2022-SM and Customs Appeal No. 50269 of 2022-SM - FINAL ORDER Nos. 51101-51102/2022 - Dated:- 23-11-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Sh. Prem Ranjan Kumar, Advocate for the appellant Sh. Mahesh Bhardwaj, Authorised Representative for the respondent ORDER The appellant, Sh. Amit Nagi, Proprietor of M/s Dev International having IEC No. 3015004000 and is located at Ludhiana. The other appellant Sh. Ravinder Puri is a middleman/ facilitator who facilitates the traders engaged in import /export. 2. The Officers of DRI Delhi Zonal Unit examined 13 containers allegedly shown to have been imported in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagi for this purpose and gave him a copy of Amit Nagi s PAN and IEC of M/s Dev International. He further stated that in lieu of the arrangement done by him (Ravinder Puri) with Sh. Rajan Arora for import of consignment pertaining to bill of entry No. 3504520 dated 07.12.2015, he was to get Rs. 50,000/- and this included CHA charges also. He further stated that he was in verbal agreement of import of disposable glasses only with Sh. Rajan Arora for this consignment and was not aware about any other goods being imported in these two container and that Sh. Rajan Arora could only explain about the goods imported other than the disposable glasses. 7. That statement of Sh. Rajan Arora partner of CHA firm M/s Sark Enterprises was recorded who inter alia stated that one Sh. Ravinder Puri approached him with an IEC in the name of M/s Dev International which could be used for imports in the name of the said firm by mis-declaring the goods and he assured clearance from customs at his own risks for which he was to be paid Rs. 2,50,000/- per container (to Sh. Ravinder Puri) which included duty, CHA Charges etc. He further stated that he was in search of such an IEC as one Sh. Ramesh Wadhera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainers only, declaring the goods as 'Disposable Glasses'. For rest of eleven containers, bills of entry were not filed even and as per the bills of lading for rest of the containers the goods were declared as 'Disposable Glass'. vi. Ready-made garments of Indian origin have been imported in the guise of declared item i.e. 'Disposable Glass' by way of concealment. vii. These goods contained in all thirteen containers appeared to have been imported in contravention of provisions of Section 46 of the Customs Act, 1962 by mis-declaring the actual description in Bill of Entry/Bill of lading, therefore the ready- made garments valued at Rs. 8,09,55,600/- imported by concealment/mis-declaration appear to be liable to confiscation under Section 111(f), 111(i) and 111(m) of the Customs Act, 1962. The disposable glasses, valued at Rs. 10,39,140/- used to conceal the ready-made garments in contravention of the provisions of the Act ibid appeared liable to confiscation under Section 119 of the Customs Act, 1962. viii. From the statements of various persons concerned with regard to import in the thirteen containers, Sh. Ramesh Wadhera appeared to have imported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used for this illegal import for monetary consideration with the knowledge that the goods so imported were liable to confiscation and has also contravened Section 11 of the Foreign Trade (Development Regulation) Act, 1992 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 and thus has rendered himself liable to penalty under Section 112 of the Customs Act, 1962. 10. Based on the above investigations, M/s Dev International, Ludhiana through its proprietor, Sh. Amit Nagi, Sh. Ramesh Wadhera, Sh. Rajan Arora and Sh. Ravinder Puri were Show Caused as to why:- i. The goods i.e. 12,26,600 pieces of ready-made garments imported, in guise of Disposable Glass under thirteen containers as mentioned in the table under para 18 in the show cause notice, valued at Rs. 8,09,55,600/- should not be confiscated under the provisions of Section 111(f), (i) and (m) of the Customs Act, 1962. ii. The goods i.e. 1,50,600 pieces of Disposable Glass valued at Rs. 10,39,140/- used for concealment of ready-made garments, imported under the said thirteen containers, should not be confiscated under the provisions of Section 119 of the Customs Act, 1962. iii. Penalty should not be impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleased to reject the appeal. Being aggrieved, the appellants are in appeal before this Tribunal. AMIT NAGI: 15. Learned Counsel for the appellant inter alia urges the following grounds:- i. It is an admitted case as per record, that a Bill of entry pertaining to only two consignments (containers) were filed in the name of the appellant s firm and that too was filed without his knowledge and no Bill of entry was filed for the rest 11 containers by any person. ii. It is admitted position in the show cause notice that nobody claimed any of the 11 consignments, then merely because the Bills of Lading showed M/s Dev International as the consignee, and since Dev International did not take any steps to claim the goods, then they cannot be made liable for penalty at least for the 11 containers for which no Bill of Entry was filed. iii. It is admitted fact on record that the appellant has not presented himself in any manner before the Customs Authorities claiming to be the owner of the seized goods at any stage. Even for the two containers for which a bill of entry was filed in the appellant s name, the same was also dealt by Sh. Ramesh Wadhera and Sh. Rajan Arora as acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty cannot be imposed on the proprietorship firm as well as on the appellant as the firm and its proprietor are one and same entity. (Universal Commercial Corporation versus Collector of Customs Delhi reported in 1994 (69) ELT 150 (Tri.) and Commissioner of Customs CSI Airport, Mumbai Versus Gian Chand Jain reported in 2015 (321) ELT 199 (Bom.) xi. Statement of Sh. Sandeep Sharma, Director of M/s Spazehub Logistics (P) Ltd. recorded on 07.04.2016 clearly revealed that it was Sh. Rajan Arora and Sh. Ramesh Wadhera who did all negotiation and took all steps towards all these consignments and it was Sh. Rajan Arora who provided him the KYC Documents and that he never met any person representing Dev International. Hence, imposing penalty either on Sh. Amit Nagi or Sh. Ravinder Puri were not justified. xii. The appellant could not be even said to have abetted the doing or omission which has rendered the goods liable for confiscation as the appellant has at no point of time claimed the ownership of the goods, rather the appellant has been consistently denying having either ordered for importation or had any knowledge with regard to the offending goods which were allegedly imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo containers for which bill of entry was filed. Sh. Rajan Arora has nowhere stated that Sh. Ravinder Puri was aware of the mis-declaration. (vi) The contention of the appellant is also corroborated by the statement of Sh. Sandeep Sharma, Director of M/s Spazehub Logistics (P) Ltd., who inter alia stated that it was Sh. Rajan Arora and Sh. Ramesh Wadhera who did all negotiations and took all steps with respect to these two consignments. Further, it was Sh. Rajan Arora who provided the KYC documents as Sh. Sandeep Sharma never met any person representing M/s Dev International. This appellant had no knowledge about the illegal motive of Sh. Rajan Arora in connivance with Sh. Ramesh Wadhera. This appellant is also person of small means and penalty imposed is disproportionate. Accordingly, the learned Counsel for the appellant prays for allowing both the appeals with consequential benefits. 17. Learned Authorised Representative Sh. Mahesh Bhardwaj appearing for the Revenue relies on the impugned order. 18. Having considered the rival contentions, I find that Sh. Amit Nagi on advice of Sh. Ravinder Puri allowed the use of his IEC code for import to be made by Sh. Rajan Arora. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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