TMI Blog2023 (1) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... it Jain has allowed the use of his IEC in good faith, not knowing about the illegality or attempt to smuggle the goods by Shri Dhananjay Kumar Singh - Shri Dhananjay Kumar Singh had also admitted that on earlier two occasions also, he had cleared the valuable consignment by resorting to smuggling, as the earlier two consignments were cleared without filing bill of entry by resorting to forgery and delivery without actual gate pass. Accordingly, penalty imposed on Shri Dhananjay Kumar Singh of Rs.5,00,000/- under Section 112 and Rs.20,00,000/- under Section 114 AA are confirmed and his appeal is rejected. Penalty on Shri Upendra Kumar Chaubey - HELD THAT:- He has actively connived in the whole episode of smuggling, morefully described hereinabove. He has knowingly used forged documents like gate pass etc. having knowledge of its forged nature. However, he is a person of small means and employee of the importer - M/s.Shankeshwar Impex. The penalty imposed upon him is disproportionate. Accordingly, this appeal is allowed in part. The penalty of Rs.4,00,000/- under Section 112 reduced to Rs.1,00,000/- and penalty of Rs.15,00,000/- under Section 114 AA to Rs.3,00,000/-. Penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Handling of Cargo in Customs Areas Regulations, 2009 is reduced to Rs.1,00,000/-. Penalty of Rs.5,00,000/- under Section 112 of the Act is set aside - Appeal allowed in part. - Custom Appeal No.50879 of 2020 (SM), 51060 of 2020 (SM), 51061 of 2020 (SM), 51163 of 2020 (SM), and 50121 of 2022 (SM) - FINAL ORDER NOs.50071-50075/2023 - Dated:- 25-1-2023 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Ms. Vidushi Shubham, Advocate in Appeal No.C/50879 of 2020, Ms. Sunaina Phul, Advocate in Appeal No.C/51060, C/51061 C/51163/2020 and Shri B.L. Garg, Advocate in Appeal No.C/50121 of 2022 for the appellants. Shri Mahesh Bhardwaj, Authorised Representative for the respondent. ORDER This bunch of appeals arises from the common impugned orderin- original and hence, are taken-up together for hearing and disposal. 2. The appellant, Shri Krishna Logistics Management is a CHA concern, proprietor of which is Mr. Ashish Mishra having Customs Licence No.33/2016. 3. Appellant - Shri Dhananjay Kumar Singh was looking after Customs clearance works of M/s. Shankeshwar Impex Pvt. Ltd.(Importer) since 2016. Mr. Abhishek Mishra - appellant is in appeal against imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verified, it was found that Gate Pass No.N201707260763 dated 28.07.2017, which was used for attempted removal on 28.07.2017, was fake . 9. It was also found that the original AWB NO.160-85715652 dated 22.07.2017 Delivery Order No. DL/17-18CI/02395 dated 29.07.2017 procured from the airline office and the import manifest filed by the airline, contained the description of goods as Garment Accessories Without Battery whereas the description of goods in AWB of the same number filed with the Bill of Entry No.2656737 dated 30.07.2017 was given as Jewellery without Battery and thus the AWB for filing the Bill of Entry was forged and fabricated with regard to description of goods. Further, the description of goods in the Bill of Entry (filed by M/s. Shankeshwar Impex Pvt. Ltd.) was given Assorted Silver Jewellery . 10. The premises of M/s. Shankeshwar Impex Pvt. Ltd., Indore was searched wherefrom copy of invoice No.170092095 dated 20.07.2017 issued by M/s. AQ Trading C/o KSG Global Company, Hong Kong in the name of M/s Shankeshwar Impex Pvt. Ltd., Indore for Silver Jewellery (Assorted) for 950 kgs. Valued at USD 4,65,500/- was recovered and resumed. 11. During the investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Ld. Commissioner in the impugned order has held that evidently the two pallets in question were scrupulously moved around to pre delivery area then to final delivery area and upto the delivery gate. The appellant did not inform the Department about the same until the Department stepped in for investigation. Further, the appellant in defence reply, have not made any submissions with regard to such movement and failed to immediately report such attempted removal. 15. As regards the allegation of non-maintenance of proper records, the appellant s stand that the process/documentation, storage and movement of any cargo, subjected to custody of CELEBI is properly recorded in its books/documents and monitored with the help of CCTV and same has been provided to the Department during investigation. Rejecting the contention, ld. Commissioner has held that CELEBI has failed in their duties to maintain proper records as the goods were lying at a third location and not as per record. 16. So far the next allegation that the goods in question were shifted to final delivery area by CELEBI staff wrongly, at the behest of the employee of CHA and not at the instructions of the responsib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mport consignment in question was imported by M/s. Shankeshwar Impex and they had filed bill of entry after failed smuggling attempted on 28.07.2017 by Mr. Abhishek Mishra. Further, Mr. Abhishek Mishra, H-Card Holder working with Aeroship Logicare Pvt. Ltd., who was also visible in the CCTV footage, in his statement dated 13.10.2017 before the Customs, stated that Mr. Mohit Jain had asked Mr. Dhananjay Kumar Singh to remove the goods without payment of customs duty. Further, one Mr. Vijay Kumar of M/s.Gulshan Malik was also involved in attempted removal of goods and was visible in the CCTV footage and his statement recorded by the Customs on 11.08.2017, had stated that he along with Mr. Abhishek Mishra and Mr. Satish Kumar attempted to remove the two pallets of M/s Shankeshwar Impex on the directions of Mr. Dhananjay Kumar Singh and Mr. Upendra Kumar Chaubey. Further, during search in the premises of M/s Shankeshwar Impex, copies of invoice No.170092095 dated 20.07.2017 was recovered, wherein the description of the goods was given as Silver Jewellery (assorted). Whereas in the AWB dated 22.07.2017, the description of the goods was given as Garment accessories without batteries. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sufficient ground to render their statements irrelevant. There are also other evidences on record, independent of the statements made by such persons, which supports the allegation. Further, all the persons, whose statements are relied upon, are the co-noticees. Thus, their non-appearance for crossexamination is evidently in mutual interest and benefit of the coaccused, cannot be ruled out. Ld. Commissioner observed that Mr. Dhananjay Kumar Singh in his statement dated 02.01.2018, is in response to Question No.5, wherein he had admitted that on being asked by Ms. Sonia of PRM International Hong Kong, (Cargo Consolidator), he agreed to do the customs clearance of the shipment in question for consideration of Rs.750/- per kg. or about Rs.7,00,000/-. Thereafter, he contacted Mr. Abhishek Mishra for removal from CELEBI Warehouse. Mr. Abhishekh Mishra earlier also has done such removal of goods from CELEBI Warehouse on his directions without filing of bill of entry. He also admitted that fake gate pass was got prepared on his directions, by Mr. Abhishekh Mishra. Thus, the ld. Commissioner observed that Mr. Dhananjay Kumar Singh in his own statement had admitted his involvement in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,000/- for removal of the goods. Ld. Commissioner recorded the findings that this appellant have done act of omission and Commission, have abetted the attempted removal of dutiable goods from Customs warehouse in violation of the provisions of Section 111(j) and thus, is liable to penalty under Section 112 of the Act. He is further liable to penalty under Section 114 AA of the Act for making arrangement or abetting the removal on forged documents. However, residual penalty under Section 117 of the Act was dropped. Abhishek Mishra 25. This appellant was holding G-Card issued against the Customs broker- Aeroship Logicare Pvt. Ltd. The allegation against him is that on being asked by Mr. Dhananjay Kumar Singh, he got fake and fabricated gate passes prepared through one Mr. Pramod Kumar and the said gate pass No.N2017072603 dated 27.07.2017 was used for attempted illegal removal of the goods. Further, in the CCTV footage also, this appellant was seen involved in the attempted removal. This appellant in his defence has stated that no forgery or falsification of the documents was done by him. Mr. Dhananjay Kumar Singh had called him on his mobile phone between 5.30 p.m. to 6.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut filing bill of entry, the goods were seized. Ld. Commissioner held that the goods are liable for confiscation for violation of Section 111(f) for alleged misdeclaration in the import manifest and also under Section 111(j) for the attempted removal without proper authorization. Ld. Commissioner further took notice of the fact that Mr. Mohit Jain had admitted filing of the bill of entry and had also claimed provisional release vide letter dated 01.09.2017. Thereafter, he rescinded the authorization to CHA and requested for self-clearance of the goods. Further, in his bail application before the CMM, he admitted import and ownership, as well as filing of bill of entry. Further, before the Magistrate Court, the Department also accepted Mr. Mohit Jain of M/s. Shankeshwar Impex to be the importer of the goods. Ld. Commissioner further observed that import of Silver Jewellery is neither prohibited nor restricted. Ld. Commissioner ordered confiscation of the goods being Assorted Silver Assorted Jewellery weighing 912.722 valued at Rs.3,10,84,520/- involving customs duty of Rs.58,79,170/- with option to redeem on payment of fine of Rs.60 lakhs. 27. Assailing the impugned order, ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not mean that it has to be accepted as truthful. Evidentiary value of the statement is required to be measured in conjunction with other evidences and attending circumstances. Thus, the impugned order is fit to be set aside against this appellant. 29. Assailing the impugned order, ld. Counsel for Sh. Upendra Kumar Chaubey, inter alia, urges that the Commissioner has held that this appellant was not connected in any way in the forgery of the gate pass used for attempted clearance on 28.07.2017 and have accordingly, dropped the proposed penalty under Section 114 AA of the Act. The penalty under Section 112 of the Act has been imposed relying upon the statement of the co-noticee. Although, the ld. Commissioner allowed the prayer of this appellant for crossexamination but failed to ensure the attendance of the witnesses by exercising the jurisdiction vested in him. Further, this appellant has retracted his statement at the very first opportunity, wherein he categorically stated that his statement was recorded by the officers as dictated by them. Further, reliance was placed on the statement of Mr. Abhishek Mishra, who had stated that he attempted the removal of the goods on 28.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng delivery on 28.07.2017 was forged. Further, this appellant did not have any knowledge that Mr. Dhananjay Kumar Singh has attempted to get the goods cleared from the godown of the custodian - Celebi without filing bill of entry. Normally, the gate pass is issued only after grant of clearance by the Customs. Further, there is no active violation of the provisions of Section 111(j) of the Act by this appellant, as he had no knowledge of the mischief being done by Shri Dhananjay Kumar Singh. 31. Ld. Counsel relies on the following rulings:- (1) Mahendra Shah Vs. Commissioner of Customs (Import), Mumbai 2010 (261) ELT 497 (Tribunal- Mumbai). (2) Pankaj Babu Saini Vs. Commissioner of Customs, Ghaziabad - 2015 (316) ELT 164 (Tribunal-Delhi) (3) Anchor Logistics Vs. Commissioner of Customs - 2013 (290) ELT 334 (Gujarat). (4) Access World Wide Cargo Vs. Commissioner of Customs, Bangalore -2022 (379) ELT 120 (Tribunal-Bang.) (5) Kamal Sehgal Vs. Commissioner of Customs (Appeals), New Delhi -2020(371) ELT 742 (Tribunal-Delhi) 32. Assailing the impugned order, ld. Counsel on behalf of the appellant - M/s. Krishna Logistics CHA, inter alia, urged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uneration @Rs.750/- per kg. or Rs.7,00,000/- approximately. Thereafter, Shri Dhananjay Kumar Singh, who was handling the clearance for Shri Mohit Jain of M/s.Shankeshwar Impex, used the IEC of M/s. Shankeshwar Impex for import of the goods. Shri Mohit Jain has allowed the use of his IEC in good faith, not knowing about the illegality or attempt to smuggle the goods by Shri Dhananjay Kumar Singh. It is Shri Dhananjay Kumar Singh, who in close association with Shri Upendra Kumar Chaubey, have attempted to get the goods delivered without filing of bill of entry, which is equivalent to smuggling. It is Shri Dhananjay Kumar Singh, who has given instructions to Shri Abhishek Mishra, Shri Upendra Kumar Chaubey and others, promising them some remuneration. Further, these facts are also proved from the fact that Shri Dhananjay Kumar Singh had agreed with Ms. Sonia that in case of failure to clear, and the goods get confiscated by the Customs, he shall bear 50% of the loss. Further, Shri Dhananjay Kumar Singh had also admitted that on earlier two occasions also, he had cleared the valuable consignment by resorting to smuggling, as the earlier two consignments were cleared without filing bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods and the documents before the Customs Department. Further, there is no allegation of any connivance on their part in the attempted smuggling of the imported goods on 28.07.2017. Accordingly, I allow their appeal and set aside the penalties imposed. 39. So far M/s. Celebi Delhi Cargo Terminal Management India Pvt. Ltd. are concerned, it is evident that they are not party to the attempted removal by other appellants in the nature of smuggling, particularly, Shri Dhananjay Kumar Singh. However, there appears to be lack of internal control procedures in their office/warehouse, and taking advantage of such loop holes in the procedures/mechanism, Shri Dhananjay Kumar Singh and others in collusion have attempted to remove the imported goods without filing bill of entry by using forged documents. Further, Shri Dhananjay Kumar Singh has been successful in removing the two consignments earlier, by resorting to smuggling in similar manner without filing bill of entry. I further find that M/s Celebi Delhi Cargo Terminal Management India Pvt. Ltd. have immediately informed the Customs of the incident, which had happened on 28.07.2017 as 29th and 30th July, 2017 were holidays i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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