TaxTMI 
TaxTMI 
2017 (11) TMI 619
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith imported goods were cleared from ICD, Tughlakabad. The details of the containers are as under : Table 1 Bill of Lading No. & Date Container No. Customs Manual Gate Pass No. & Date CONCOR Gate Pass No. & Date KKLUSIN100815 dt. 06.05.12 KKFU7222266 9001/25.05.12 GPCC525739 dt. 25.05.12 KKLUSIN100369 dt. 05.05.12 KKFU7095562 9002/25.05.12 GPCC525730 dt. 25.05.12 KKLUSIN100139 dt. 05.05.12 KKFU7397095 KKFU7655332 9003/25.05.12 GPCC525735 GPCC525736 both dt KKLUSIN100136 dt. 05.05.12 CAIU8452159 KKFU7692995 9010/25.05.12 GPCC525666 GPCC525667 both dt 25.05.12 KKLUSIN100135 dt. 05.05.12 KKFU7201II3 KKFU7692995 9010/25.05.12 GPCC525666 GPCC525667 both dt 25.05.12 On verification, the Bills of Entry mentioned on Customs Manual Gate Passes were found to be forged. The details were as under: Table 2 Customs Manual Gate Pass No. & Date Bill of Entry No. & Date as mentioned on the Customs Manual Gate Passes Actual date of Bill of Entry Ports/Customs Location to which the Bill of Entry actually 9001/25.05.12 6905262/23.05.12 23.05.12 ICD, Patparganj 9002/25.05.12 6911305/24.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Commercial & Operation), CONCOR, ICD, Tughalkabad, was recorded on 17.04.2013 wherein he admitted that he had made the gate passes and job orders for Bill of Entry dated 23.05.2012 for proper examination. Further, during the course of investigation by DRI, statement of transporters, drivers, shipping line and other related persons/entities were recorded under Section 108 of the Customs Act, 1962. 5. Based on the statement of Shri Chhutan, driver, search was conducted on one godown which was found locked and under Panchnama dated 30.05.2012 it was sealed. Subsequently, on 31.05.2012, this godown was opened as per law and 540 sets of split air conditioners [385 of 'O' General brand of different capacities and 155 (1.5 ton) of Sanyo brand] were seized under the provisions of the Customs Act, 1962. Driver Chhutan confirmed that he had transported the goods from ICD, Tughalkabad, to this godown. He also informed that in addition to the air-conditioners, the gas-cylinders were also brought by him. Two more godowns belonging to Shri Satyanarayan Mittal were also sealed on 31.05.2012 by the DRI Officers. 6. On the basis of the statements and other materials, the DRI had drawn the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tated that he was not in touch with Shri Ajit Singh Chadha. On the request of the Department, ACMM, Patiala House, New Delhi, had issued the warrant against Shri Ajit Singh Chadha and Shri Rohit Sakhuja on 17.07.2012 with a direction to appear before the Court on 04.08.2012. In the meantime, both the accused filed the Writ Petition (Criminal) 93 & 94 of 2012 before the Hon'ble Supreme Court seeking relief. The said Writ Petitions were allowed by the Hon'ble Supreme Court on 14.08.2012. 7. On 25.07.2012, Shri Ajit Singh Chadha appeared before the DRI Office and his statement was again recorded. 8. The DRI Officer also recorded the statement of Shri Vinod Kumar, Labour Contractor, who had provided the labourers for unloading of the said eight containers. His statement was recorded on 07.06.2012 under Section 108 of the Customs Act, 1962. In addition, Shri Vinod Kumar identified all the godowns. He also took the DRI Officers to two more godowns situated in the lower and upper ground premises at Glali No. 74, Karol Bagh, New Delhi. These godowns were found locked. The DRI Officers, after completing the legal formalities, seized the indoor and outdoor units of "O" General brand ai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the record of the goods from the godowns, he admits that the goods were purchased from one Shri Sandeep Kumar, CHA, as stated in para 58 of the impugned order. Learned counsel also submits that the assessee-Appellant (Rohit Sakhuja) had approached the Settlement Commission, but his application was rejected. He also charged the DRI Officers of disposing off the cigarettes without any proper notice to the assessee-Appellants, which is the violation of Section 150 of the Customs Act. He further submits that the shipping line also did not implicate Shri Rohit Sakhuja. Delivery order was taken by one Shri Chattar Pal who resembled one "Sharmaji", but he was not identified (para 8.3 of SCN). None of the importing firms were in any manner linked to Shri Rohit Sakhuja. Though, initially, the consignees were shown as M/s Star Aircon and M/s M.C. Overseas and later changed to the names of five other companies. There is no evidence of involvement of Shri Rohit Sakhuja in any company. The names of five companies were unauthorisedly taken for which Shri Rohit Sakhuja is not responsible. Shri Sushil Sharma, Customs Office boy admits that he had given blank Customs passes to one Bunty, brother of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order, penalty of Rs. 40 lacs was imposed on Shri Ajit Singh Chadha and equal penalty was also imposed on Shri Rohit Sakhuja under Section 112 and 114AA of the Customs Act, 1962. In addition, a penalty of Rs. 2,86,84,273/- was imposed under Section 114A of the Customs Act, 1962 jointly on Shri Ajit Singh Chadha and Shri Rohit Sakhuja. II. APPEAL BY APPELLANTS : KAMAL VIRMANI (C/52514/2015) 16. The learned counsel Shri A.K. Prasad submits that Shri Kamal Virmani is the proprietor of M/s Gaurav Enterprises as mentioned in para 115 of the impugned order. Penalty of Rs. 30 lacs was imposed illegally. He nowhere admitted the sale of R-22 gas which was used in air-conditioners and refrigerators. He only mentioned that he knew about import of the gas by Shri Ajit Singh Chadha. He was not having the knowledge that Shri Rohit Sakhuja has illegally imported the ACs. The observation made in para 64 of the impugned order is incorrect. Hence, no penalty is leviable on Shri Kamal Virmani. NARESH KUMAR SHARMA (C/52515/2015) 17. The learned counsel Shri A.K. Prasad submits that Shri Naresh Kumar Sharma is a proprietor of M/s Star Aircon. Penalty of Rs. 30 lacs was imposed on him....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso submits that the said cylinders were purchased without any documents. R-22 gas cylinders were also purchased by Shri Dilip Singh Jain. It is the submission of the learned counsel that her clients were petty shopkeepers and they were not dealing in the imported items. They were not aware that the said items were imported items. She admits that one Shri Ajit Singh Chadha and others have clandestinely removed the eight containers from ICD, Tughlakabad, but her clients had nothing to do with it. It is the case of the Department that the assesseeAppellants had dealt with the sale and storage of the subject goods. The penalty was imposed solely on the basis of the submission of the assessee-Appellants without any corroborative evidence. The assessee-Appellants were not aware about the imported nature of the goods and that storage and sale was not affected in the normal course of business. The assessee-Appellants were neither aware about the smuggled goods nor had reasons to believe at the time of purchase that the same are liable to be confiscated under Section 111 of the Customs Act, 1962. She submits that penalty in the instant case has been imposed solely on the basis of the state....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the goods on forged documents. He had destroyed the SIM card to avoid the call records. He had absconded along with his father who helped in arranging the gate passes. He admitted that he had arranged the transportation on the request of Shri Rohit Sakhuja. He used the services of his brothers in facilitating the clearance of the goods. Similarly, Shri Pradeep Kumar was the first person to whom he had given the gate pass booklet. Gate passes from the said gate pass booklet were used to fraudulently remove the containers out of ICD, Tughlakabad. Hence, it appears that Shri Sandeep Kumar and his brother abetted in the forgery of manual Customs gate passes. Shri Sandeep Kumar admitted to have known Shri Rohit Sakhuja and Shri Ajit Singh Chadha since the last 2-3 years and had cleared their consignments in the past also. Shri Sandeep Kumar is absconding since the detection of the case. III DEPARTMENTAL APPEALS : JAGJIT SINGH @ BUNTY (C/53118/2016) 24. The learned counsel Shri A.K. Prasad submits that the Commissioner (Appeals) has rightly dropped all charges against him. His statement was recorded on 21/12.06.2012. On 30.07.2012, the residential premises of Shri Jagjit Singh ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....K. MAHAPATRA (C/53121/2016); S.K. DUBEY (C/53122/2016); S.K. SINGH (C/53124/2016); AND K.LINE SINGAPORE PVT. LTD. (C/53125/2016) 27. All these appeals are filed by the Department against the impugned order wherein the Commissioner had refrained from imposing penalties on the assessee-Respondents. The learned counsel for the assessee-Respondents Shri Piyush Chaudhary, submitted that Shri R.K. Mahapatra, Junior Executive and Shri S.K. Dubey, Senior Executive (Commercial), employees of CONCOR, had followed the entire procedure while shipping containers out of ICD, Tughalkabad, New Delhi. He also submitted that in the instant case, Shri Ajit Singh Chadha and Shri Rohit Sakhuja hatched a conspiracy to remove containers on the strength of forged Customs documents. There is no mechanism to verify and authenticate the genuineness of the signatures/stamp/seal of Customs Superintendent & Inspector. The goods were cleared on the basis of forged Bills of Entry, TR-5 Challans, manual customs gate passes etc. The forged and bogus photo identity was submitted to the shipping line for obtaining the delivery order and forged/bogus indemnity bonds were executed. He also submitted that the Commiss....