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TMI Blog2024 (11) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 vide the impugned order for his involvement in the present case and his role in the past smuggling carried out by him. 1.2. As both the appeals emanate from the same Order-in-Original, both are taken up together for disposal by way of a common Order. 2. The facts of the case are that based on a specific intelligence received by the Kolkata Zonal Unit of the Directorate of Revenue Intelligence (DRI) that a smuggling syndicate is attempting to smuggle cigarettes of foreign origin into India in the guise of Nepal import in a container bearing No. GESU5984886 (40 feet) through Kolkata Port and the goods are being mis-declared as Stationery Goods in the concerned Customs Transit Declaration (CTD) with the intention to replace the declared goods in India, the officers of the DRI initiated an investigation. The Officers located the above container at the Netaji Subhash Dock, Kolkata and subjected it to 100% examination. Upon examination, the Officers found that 649 cartons of "Gudang Garam International" brand filter cigarettes of Indonesian origin had been concealed inside the container declared to contain stationery goods. 3. After investigation, a Show Cause Notice dated 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh submits that he was an employee of the CHA firm namely, M/s. Overland Agencies, whose licence had been suspended. He contended that he has no involvement in the smuggling activity of cigarettes in this case; the ld. adjudicating authority has not given any finding about his involvement in the alleged smuggling activity, in the impugned order. It is also submitted that his name has been brought in only by Shri Santosh Kumar Prasad which alone cannot be relied upon to implicate him in the commission of the alleged offence; the adjudicating authority has not adduced any corroborative evidence to substantiate the allegation. Accordingly, it is submitted by the Appellant No. 2 that the penalty imposed on him under Section 112(b) of the Customs Act, 1962 is liable to be set aside. 6. The Ld. Authorized Representative of the Revenue reiterates the findings in the impugned order. He submitted that the Appellants played active role in the commission of the offence. Appellant No.1 arranged the godown where the smuggled cigarettes were replaced. He has helped the smuggling of cigarettes on an earlier occasion also. Appellant no.2 helped in identifying the CHA for clearance of the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him (Santosh Kr. Prasad). Further, as per his submission, Sri Man Singh procured the transport job for the container No. VMLU 3707024 (20') from Kolkata to Nepal and the fare was fixed for Rs. 50000/-. Sri Man Singh further stated that he had been doing the transport of export and import containers for a long period of time (30 years) and it is quite natural that he must have minimum knowledge that the goods have to be delivered intact to the consignee and he must have been aware that Nepal bound sealed containers cannot be opened and its contents replaced in Indian territory. It is hard to believe that without any such understanding he allowed breaking open of the sealed container and replacing the goods. Further Sri Man Singh arranged the godown belonging to Sri Akhilesh Singh for storing of the stationery goods of Santosh Kumar Prasad for 4/5 days, which was supposed to be replaced with the cigarettes of container No. GESU 5984886 (40'). Thus from the conduct of Sri Man Singh it would appear that in the capacity of transporter he in connivance with Sri Santosh Kumar Prasad abetted the diversion of goods from the Nepal bound container No. VMLU 3707024 (20') and mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epal bound sealed containers cannot be opened and its contents cannot be offloaded en-route and replaced with other goods in Indian territory. It is admitted by Shri Man Singh that he allowed his driver to take the truck to the godown owned by Shri Akhilesh Singh and allowed the goods meant for Nepal to be replaced in Indian territory. It is hard to believe that he allowed the opening of the earlier container bearing no. 3707024 without knowing that it contained smuggled cigarettes. Further it is observed that Shri Man Singh arranged the godown belonging to Sri Akhilesh Singh for storing of the stationery goods of Shri Santosh Kumar Prasad for 4/5 days, which was supposed to be replaced with the cigarettes of container No. GESU 5984886 (40'). Thus, from the conduct of Shri Man Singh, it is evident that in his capacity as a transporter of goods, he connived with Shri Santosh Kumar Prasad and played an active role in the diversion of goods from the Nepal bound container No. VMLU 3707024 (20') on an earlier occasion and made an attempt for the second one i.e. GESU 5984886 (40'). Thus, the evidences available on record indicate that Sri Man Singh was well aware of the smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nepal import containers without proper authorization. Sri Srimonta Rakshit did clearance job using the license of the CHA firm M/s Sadguru Forwarders Pvt. Ltd, though he was the employee of another CHA firm. They had acted only for monetary consideration. It is hard to believe that Sri Srimonta Rakshit and Sri Pravin Singh were kept in dark by their friend Santosh Kumar Prasad about this smuggling activity. It would thus appears that they were well aware of the smuggling activities by using the Nepal bound import containers of the subject case which they knew or had reasons to believe were liable for confiscation under Section 111(a), 111(d), 111(f), 111(h), 111(m) and 111(n) of the Customs Act, 1962, and thus liable for penalty under Section 112(a) and 112(b)of the Customs Act, 1962." 9.1. From the facts on record, we observe that Shri Pravin Kumar Singh was an employee of the CHA-firm M/s. Overland Agencies, whose licence was suspended. His name has been brought in the present activity by Shri Santosh Kumar Prasad. However, from the role played elaborated in paragraph 23.5 of the impugned order, we observe that there is no specific evidence brought on record to implicate him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asad as 9831238812 and 8296603250 and that of Shri Pravin Kumar Singh as 8981071727 and 9830971727. He also gave his mobile numbers as 9830049103 and 9830939595. 9.3. To verify the claim of Shri Srimonta Rakshit, Shri Pravin Kumar Singh was examined and in his statement Shri Pravin Kumar Singh stated that he did not know M/s Balaji Traders personally, but he knew one person named Sri Santosh Kumar Prasad, who met him 8-9 months before in Khidderpore market, Kolkata. It was also stated that Shri Santosh Kumar Prasad had given him the clearance job of one imported shoes consignment in March, 2015 for which he had made all necessary arrangement for clearance of the goods; Shri Santosh Kumar Prasad again met him in the month of April, 2015 for one import consignment of M/s. Balaji Traders, Nepal. As he had not done any job related to Nepal Import till that date, he had introduced Shri Santosh Kumar Prasad to his friend Shri Srimonta Rakshit and the said consignment was cleared by him in the month of April, 2015. He also stated that he did not know anything about the goods imported in the said consignment; Shri Santosh Kumar Prasad had come to his office again on 18/19.05.2015, when he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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