TaxTMI 
TaxTMI 
2010 (5) TMI 36
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....penalty under Section 112(a) of the Customs Act, 1962 on the charge of abetment is perverse?" 3. On 12.10.2002, the officers of Directorate General of Revenue Intelligence, on receipt of information regarding smuggling of contraband goods through speed post parcels, visited Speed Post Centre at Bhai Vir Singh Marg, New Delhi and identified 8 parcels, including 4 parcels received from Singapore and addressed to M/s Beam Technology. It was noticed that the declaration, pasted on these parcels, did not contain information regarding description, value and quantity of goods, in terms of Section 82 of Customs Act. On opening the parcels, they were found to contain computer parts which attracted payment of custom duty. It was also found that the description and quantity of the goods, as noted in the invoice, found in the parcels, were different from the actual description, quantity and value of the goods. Since the goods appeared to be illegally imported into India, the same were placed under seizure. During the course of enquiry, statement of one Kumesh Chauhan, who had earlier been delivering parcels to M/s Beam Technology, was recorded. He informed that 9 similar parcels, addressed ....
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....ving imported computer parts without payment of duty and also having paid Rs15,000/- per parcel to Shri Kishori Lal. 4. The Commissioner of Customs (Exports) imposed penalty of Rs 10,000/- upon the appellant Vishnu Kumar in respect of parcels meant for M/s Abhishek Electronics, vide Order-in-Original No.RSS/ACE/32/2003 dated 28.11.2003/ 2.12.2003. But, in the appeal, filed by the appellant Vishnu Kumar against that order, the penalty was set aside by CESTAT vide its order dated 28.03.2005. 5. In respect of the parcels delivered at M/s Beam Technology, the Commissioner of Customs (Exports) vide Order-in-Original No. KRB/ACE/08/05 dated 09.06.2005, imposed penalties upon Shri Sandeep Sehgal, proprietor of M/s Beam Technology, Shri Rajesh Kumar, Shri Kishori Lal and Shri Joginder Gulati. He, however, dropped the charges against the appellant Vishnu Kumar. The persons on whom penalty was imposed by the Commissioner of Customs (Exports) filed appeals, challenging the order passed by the Commissioner. Department also filed an appeal against the order passed by the Commissioner dropping charge against the appellant Vishnu Kumar. While upholding the penalty imposed upon Shri Sandeep ....
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.... 10.12.2002 had been imported contrary to the prohibition imposed under Section 11 of Customs Act and, therefore, had rightly been confiscated under Section 111(d) of the Act. The finding of the Tribunal to the extent it held that the goods, seized by DRI, were liable to confiscation under Section 111(d) of the Act has not been disputed before us. 9. The next question which comes up for consideration is as to whether the appellant had abetted in the act committed by the importers of these goods. The expression "abetment" used in Section 112(a) of Customs Act has not been defined in the Act. However, Section 107 of IPC defines "abetment" as under:- "107. Abetment of a thing.-A person abets the doing of a thing, who- First: -Instigates any person to do that thing; or Secondly: -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: -Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation1:- A person who, by willful misrepresentation, or by willful concealment of a mat....
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.... that were imported into India. The appellant did not bring this material fact to the notice of Customs Inspector, posted at the Centre. When an official engaged in sorting of such parcels finds a parcel without requisite declaration pasted on its front, he, if acting bona fide, is bound to get suspicious and bring this fact to the knowledge of the Customs Inspector posted at the Centre so that he could send such parcel to the Foreign Post Office for the purpose of its examination before clearing it for delivery to the person for whom it has been sent. This is not the case of the appellant that he had brought this fact to the notice of the Customs Inspector Shri Rajesh Kumar. 13. It is not in dispute that as and when any parcel was received at his Centre for M/s Beam Technology or M/s Abhishek Electronics, the appellant used to watch those parcels and inform Shri Kishori Lal. According to him, Shri Kishori Lal used to inform him in advance about the arrival of the parcels and used to tell him to keep an eye on it. In his statement, the appellant further stated that in the Month of August, 2002 when he was posted as Arrangement Clerk at this Speed Post Centre, Kishori Lal suddenl....
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....lectronics on 11.10.2002, without detaining them and without charging any duty, his act in informing Kishori Lal about arrival of four more parcels on 12.10.2002 leaves no reasonable doubt that he knew that the parcels being cleared by Shri Rajesh Kumar, Customs Inspector contained dutiable articles and, therefore, ought to have been sent to Foreign Post Office for their examination. It is thus quite clear that the appellant was aiding in clearance of dutiable goods without payment of requisite Customs Duty. 16. It has come in the statement of Kishori Lal that he used to give Rs 200/- to the appellant. The statement of Kishori Lal not being exculpatory in nature, it can be used not only against him, but also against the appellant. As noted by the Supreme Court in Naresh J. Sukhawani vs. Union of India: AIR 1996 SC 522, the statement made before the Customs Officer is not a statement recorded under Section 161 of the Code of Criminal Procedure and is a material piece of evidence collected by the Customs Officers under Section 108 of Customs Act and such material can certainly be used against the appellant. 17. The learned counsel for the appellant has referred to the decision ....