TaxTMI 
TaxTMI 
2016 (7) TMI 648
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....ad walked through the green channel of the IGI Airport. His identification was confirmed vide his passport bearing no H 2580525. On being asked whether he was carrying any contraband or any dutiable goods or anything to be declared to the Customs in his baggage or on his person, he replied in the negative. Being not satisfied with the reply of the passenger Shri Darshan Lal and as he had not declared anything in his disembarkation slip, he was diverted for scanning of the baggage through X-Ray machine situated at arrival hall. The passenger Shri Darshan Lal was carrying two checked in baggage i.e. one paper carton box and one black coloured stroller bag and one black coloured hand bag and one plastic hand carry bag. During the scanning, some suspicious items were noticed and the passenger was subjected to detailed examination of his luggage before independent Panchas. 2.1. Thereafter, the black coloured hand bag was examined and was found containing three yellow coloured plastic coated envelopes and three Khaki coloured plastic envelopes duly sealed with adhesive tape. All six plastic coated envelopes were cut open and found to contain 13300 nos. micro SD cards of 2 GB capacity ....
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....ndi and English language; that he is living at 16/785, Bapa Nagar, Military Road, Karol Bagh, New Delhi-5 along with his younger brother and family of his elder brother; that the said premises is in name of his elder brother who expired about six years back; that the name of younger brother is Raj Kumar and he is married and is running a tea stall in Tilak Nagar; that he is married and has four kids and his wife's name is Gurjeet Kaur and is a house wife; that he came to IGI Airport from Hong Kong by Air India Flight No Al 315; that he was carrying two checked in baggage bearing Tag No 0098763479 & 0098763483 and two hand baggage; that after immigration clearance and collecting his checked in baggage, he walked through the green channel when he was intercepted by the Customs officer and his baggage was examined; that on examination of his baggage, 13,300 memory cards micro SD 2GB were recovered from his hand bag and one ultrasound machine B -ultrasound diagnostic equipment Model No C-100 was recovered from his checked in baggage; that the said 13300 memory cards and the ultrasound machine were seized by the Customs officer as shown in panchnama dated 05/06.01.2011 as he did not....
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....es in Gaffar Market for about Rs. 10,000/- per bottle as there is readily available market for this kind of whisky in Gaffar Market; that at the time of his departure from India to Hong Kong, he used to carry confectionary items which he sold in Indian departmental stores in Hong Kong after making some profit which helps in recovering of cost of the ticket; that during his current visit, he took about US$ 10000 and Rs. 5000/- along with him; that the money was taken by him on loan from friends and he was to return the money after selling the memory cards; that two Mobile Phones which were recovered by the Customs Officer from his possession have nos. 9582865940 the other mobile has sim card of Hong Kong and he does not remember its number that for the first time, he had brought memory cards and on earlier occasion, he used to bring readymade garments; that there is a very thin margin of profit in memory cards and if he declared the goods to the Customs, his profit margin would have been reduced and so that he did not declare the goods to the Customs; that he did not declare the foreign currency 10000 US$ to the Customs at the time of departure; that he had worked ....
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..../S Vodafone, it has been informed vide letter dated 27.01.2011 that the mobile no. 9582865940 was allotted to Shri Vijay, C/o Mangat Ram, H. No. 16/785, Bapa Nagar, Military Road, Karol Bagh, New Delhi, however the photograph appearing on the subscription form, has been found to be of Shri Darshan Lal. 2.6. Further, in his statement dated 05.03.2011 recorded under Section 108 of the Customs Act, 1962, Shri Darshan Lal has inter alia, stated that he had applied for the said connection and the said number 9582865940 was allotted in his name; that he had gone through the said prepaid application form which carried his photograph, whereas the name of the applicant is mentioned as Mr. Vijay; that he does not know any person namely Mr. Vijay and he has no idea how such things have occurred; that the exact name of the issuing shop is not known to him; that the mobile number 9711457642 belongs to his friend namely Raj Kumar who is a property dealer and resides at Harsh Vihar, Pitampura, Delhi and he does not know his exact address; that he had contacted Raj Kumar after his arrival from Hong Kong regarding fixing of dinner; that he and Raj Kumar, do not have any common business interest ....
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....w Delhi but now he has sold the same flat; that during the conversation with Shri Darshan Lal, it was revealed that Shri Darshan Lal engaged in the business of cloths and electronic items and in this regard, he used to travel abroad frequently most likely to Bangkok and Hong Kong; that he did not have any business relationship with Shri Darshan Lal; that Shri Darshan Lal wanted to sell his shop cum flat and in this respect he had taken some loan about Rs, 1.25 lacs after handing over the shop cum flat paper; that Shri Darshan has taken property papers back at the time of selling his flat, but the amount has not been returned by Shri Darshan Lal as yet; that the mobile number 9871011781 belongs to his wife Rekha Sabharwal; that he does not know an} thing about the mobile no, 9711457642 and it does not belong to him or any of family members; that he has gone through the statement dated 05.03.2011 of Shri Darshan Lal wherein he has stated that the mobile number 9711457642 belongs to Raj Kumar and he has put his dated signature in token of having seen the same; that the number does not belong to him and he will find in common friend circle about the subscriber of the same number that h....
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.... does not know any Anil Raj Pal. 2.10. It further appeared from the above mentioned facts and circumstantial evidences that Shri Darshan Lal, Shri Raj Kumar Sabharwal and Shri Baljeet Singh are involved in the smuggling activities and by their above mentioned acts of omission and commission had rendered themselves liable to penal action under Section 112 of the Customs Act, 1962. 2.11. A Show Cause Notice vide VIII(AP) 10/P&1/02A/2011 dated 02.07.2011 was issued to Shri Darshan Lal, Shri Raj Kumar Sabharwal, Shri Baljeet Singh alleging therein as to why the seized Memory cards - 2 GB 6000 nos. and two bottles of Glenmorangi Signet Single Malt Scotch whisky 70 CL (700ml), valued at Rs. 10,04,720/- should not be confiscated under Section 111 (d), (i), (l) and (m) of the Customs Act, 1962; the seized memory cards 2GB 7300 and one Ultra Sound Machine valued at Rs. 16,32,890/- should not be confiscated absolutely under Section 111 (d), 1 (i), (l) and (m) of the Customs Act, 1962 as no one has claimed the ownership of the said goods; Customs duty amounting to Rs. 3,80,447/- in respect of the 6000 memory cards and two bottles of Glenmorangi Signet Single Malt Scotch whisky 70 CL (70....
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....omission and commission as brought out above. 3.1. Aggrieved by the said order, the respondent filed appeal before the Commissioner of Custom(Appeals), who vide Order-in-Appeal No.CC(A)Cus/190/2013 dated 26.03.2013, modified the Order-in-Original to the extent of reducing the penalty imposed on the applicant from Rs. 2,00,000 /- to Rs. 19,000/-. 4. Being aggrieved by the impugned Order-in-Appeal, the department applicant has filed this revision application under Section 129 DD of Customs Act, 1962 before Central Government on the following grounds: 4.1. That Shri Raj Kumar Sabharwal has been admittedly in constant communication with the smuggler i.e. Shri Darshan Lal since the departure for Hong Kong till his landing at the airport; and has been incriminated by Shri Darshan Lal, the penalty has been reduced from Rs. 2,00,000/- to Rs. 19,000/-. 4.2. That where department has proved that respondent was in constant touch with the smuggler, the onus to prove his innocence is on the respondent not on the department and such act of smuggling should be dealt sternly, no leniently and such a lenient view in spite of evidence on record will encourage smuggling activities. 5. ....
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....s. On perusal of records, Government observes that the case is based on specific information about the passenger Shri Darshan Lal that he would be carrying the impugned goods on flight no. Al 315 on 05.01.2011 and was carrying memory cards in commercial quantity. He was intercepted near the exit gate of the Customs arrival hall after he had walked through the green channel of the Airport. On being asked whether he was carrying any contraband or any dutiable goods or anything to be declared to the Customs in his baggage or on his person, he replied in the negative. The pax Shri Darshan Lal was carrying two checked in baggage. During the scanning, some suspicious items were noticed and the passenger was subjected to detailed examination of his luggage before two independent Panchas. The memory cards totaling 13,300 pcs valued at Rs. 21,94,500/- and two bottles of Glenmorangi Signet Single Malt Scotch Whisky 70 CL (700 ml) valued were seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the same were smuggled into India and are, therefore, liable to confiscation under the Act ibid. The original adjudicating authority interalia ordered confiscatio....
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....abharwal clearly indicate that Shri Raj Kumar Sabharwal is also involved in the smuggling activities of Shri Darshan Lal in as much as since the departure of Shri Darshan Lal on 04.01.2011 for Hong Kong till his landing at IGIA on 05.01.2011, he was in constant touch with the mobile number 9711457642 of Shri Raj Kumar Sabharwal. Shri Darshan Lal in his statement has confirmed that this mobile belongs to Shri Raj Kumar Sabharwal. As per Vodafone, the said number belonged to a third person Shri Trilochan Singh. However, the summon issued on the address of Shri Trilochan Singh, were returned with the remark no such person' which indicates that the mobile was being used for some illegal activities i.e. smuggling activity. Shri Darshan Lal had accepted that he had taken loan from friends to purchase 6000 memory cards from Hong Kong and simultaneously Shri Raj Kumar has also accepted that he has given Rs. 1.25 lakh as loan to Shri Darshan Lal against property papers. On further enquiry, Shri Raj Kumar Sabharwal stated that he has returned the property papers without taking back the loan which does not seem to be acceptable. His intense involvement with the passenger at the time of de....