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TMI Blog2025 (5) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... to import of a consignment of Areca Nuts which was mis-declared as `Ammonium Sulphate'. The consignment was seized and was examined on 26th November 2021 by the Superintendent (Port Preventive), ICD Sonepat. During the said seizure and examination it was seen that the same was containing Areca Nuts and Hydrated Lime (hereinafter, 'goods') and was wrongly declared as Ammonium Sulphate. 5. The importer in this case was one M/s Shyam Corporation whose proprietor is Mr. Anil Kumar (hereinafter, 'importer'). The Customs House Agents agent was one Mr. Manjit Singh Flora (hereinafter, 'CHA'), proprietor of M/s Caspro Logistics Company. The Petitioner admittedly was a friend of both the parties. 6. Statements of these persons i.e. Mr. Anil Kumar and Mr. Manjit Singh Flora were recorded by the Department. After recording the statement of the parties, the Adjudicating Authority came to the conclusion that the Petitioner is the mastermind behind the smuggling of Areca Nuts by mis-declaration. The findings in the impugned order reads as under: "17.3 From the above it is clear that Sh. Satish Sharma has pivotal role in the import of Areca Nut and he along with the proprietor orchestrated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department and his statement was not recorded. It is also submitted by the ld. Counsel for the Petitioner that if no penalty has been imposed on the Petitioner under Section 112 (a) (i) of the Customs Act 1962, then penalty could not have been imposed on the Petitioner under Section 144 AA of the Customs Act 1962. 9. On behalf of the Respondent, ld. SSC submits that the Petitioner himself has admitted in the reply dated 11th July 2022 filed by him that he was the person who had filed the bill of entry. In the reply itself, it is clear that the Petitioner knew of all the documents and that he was also aware of the import of the consignment. 10. Ld. SSC further submits that the persons who were involved in the alleged smuggling i.e. Importer and the CHA were also closely aligned with the Petitioner which is also admitted by the Petitioner in his letter. Ld. SSC also highlights that insofar as Deepak Kumar is concerned, the Petitioner never sought permission to cross-examine Deepak Kumar. 11. The Court has considered the matter. It is firstly confirmed and admitted by ld. Counsel for the Petitioner, that the Petitioner uses two names - Satish Kumar and Satish Sharma. The impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow and when did he know that the goods in the container were not as per the B.E, filed, he stated that he was telephonically informed by Shri Deepak Kumar on 28.12.2021 that the goods in container are not as per BE and he (Manjit Singh) was requested to get the customs examination done for the said shipment on 29.12.2021 ix) On being asked as to whether he received any revised documents from the importer or from any other person, he stated that he received the file containing a copy of the BE along with a request letter sent to customs by importer through Shri Satish Sharma on 29.12.2021 when he came for attending the customs examination of the shipment. x) The Importer vide their letter dated 14.02.2022 submitted the copy of bank statement along with previous consignment sale bills and submitted that they never did any remittance with the supplier of the goods and transaction of foreign currency is not done by them. If further requested to the department to give the order for re-export of the goods and declared that they do not want any personal hearing and any show clause Notice in the regard. On going through the copy of bank statement and previous consignment bill no docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Areca Nuts and Hydrated Lime, he stated that he was informed by Shri Satish Sharma that the containers contained Areca Nuts and Hydrated Lime and, in this relation, he is to attend the examination. As per his directions, he presented himself near the containers imported in his firm's name where CHA, Mr. Manjit Singh Flora was also present and who also informed that this is Areca Nuts (supari) and Hydrated Lime and as per BE it should be Ammonium Sulphate. vii) On being asked that despite knowing from supplier, that goods are mis-stuffed why the BE was filed, he stated that Shri Satish Sharma informed him that wrong goods have been stuffed in the containers as going through his email details dated 23.12.2021 at 10.10pm (enclosing copy of letter dated 20.12.2021 and invoice & packing list dated 19.11.2021, copies of which already submitted). However, BE was already filed on 22.12.2021. Mr, Satish Sharma also informed that a mail written to the Department for re-exporting the goods back to the supplier and certain other mails were sent to the Department (copies of emails submitted). ix) On being asked to see cell phone including mails from 20.12.2021 till 04.01.2022, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant portion of the said reply reads as under: "(1) We had filed an EDI Bill of Entry No. 6793084 dated 22.12.2021 through our Customs Broker M/s Caspro Logistics Company. Our customs broker had filed said BE on the basis of Invoice, Packing List and Copy of Bill of Lading provided to them. Therefore, the item description in the bill of entry read as "AMMONIUM SULPHATE" classified under CTH 31022100." 16. On the conjoint reading of the statements and the reply filed by the Petitioner, it cannot be said that the Petitioner did not have any role at all in the import of the consignment. The statements recorded reveal that the Petitioner did have an active role and as held in the impugned order, could have been the master mind. The document which connects the Petitioner to the import is the reply which has been filed on record apart from the oral statements. 17. Ld. Counsel submits that the opportunity to cross-examine was not given. It is a settled legal position that cross-examination is not an unfettered right as held by this Court in M/s Vallabh Textiles v. Additional Commissioner Central Tax GST, Delhi East& Ors.' (2025: DHC: 2559-DB). The relevant portion of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the appellants also in that view fails and is rejected." "(emphasis supplied)" 18. A perusal of the above decisions reveals that while cross-examination would be required in certain cases, it need not be given as a matter of right in all cases. The provision of the opportunity to cross-examine depends on the facts and circumstances of each case and is warranted only when the party seeking such an opportunity is able to demonstrate that prejudice would be caused in the absence thereof." 18. The Petitioner is well aware of the CHA and the importer. The impugned order is an appealable order. The question as to what role was played by the Petitioner would have to be adjudicated in an appeal on the basis of facts as the same would not merely be a legal issue. 19. However, the only question that the Court considers at this stage is in respect of the penalty which has been imposed upon the Petitioner. 20. The penalty appears to be slightly disproportionate considering the penalty imposed of Rs. 2 crores on the importer. In view thereof, the Petitioner is permitted to file an appeal challenging the impugned order before the Customs, Excise and Service Tax Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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