TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1240
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....e imported in container No. TLXU 2021855 arriving from Malaysia, the officers of DRI kept vigil on the movement of the said container at PSA SICAL Terminal, Tuticorin Port. The intelligence also suggested that the container may be diverted to a private godown in Tuticorin and that it may be replaced by another container carrying cover goods. The container TLXU 2021855 arrived at Tuticorin Port by vessel Cape Nemo on 10.02.2016. As per the Bill of Lading No. TALTKL01932656 issued by M/s.Trans Asia Lines, the container had 65 packages shipped and consigned to one Shri Abdul Wahab Ashkar Ali (PP No.J6944766). The contents therein were declared by the shipper in the said Bill of Lading as 'Used Personal effects'. The officers intercepted the said container at PSA SICAL Terminal, Tuticorin Port itself on 10.02.2016, loaded in one lorry Registration No.TN69K8611, laden without any documents. S/Shri Binu Raj, Driver of the Lorry and Shri M. Mohammed Sadham were present in the lorry. After taking proper permission from the competent authority, the container was taken to the Mobile Scanner installed at Tuticorin Port area for scanning the container and on viewing the container in the scan, ....
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....hri Rahamath Ali was always kept ready for substituting the actual container and parked in the godown. (iv) That Shri Binu Raj, Driver had knowingly indulged in smuggling of gold bars and cigarettes and diversion of actual container to the godown for the purpose of unloading the contraband as instructed by Mohammed Rabeek. (v) That one Shri A. Selvaraj had managed all the accounts relating to clearance of unaccompanied baggage to the godown and despatch of goods, was aware of clearance of contraband and had abetted Mohammed Rabeek and Rahamath Ali in the diversion of container from PSA Terminal to the godown by way of accompanying Binu Raj. (vi) That Shri Mohammed Sadham, son of Shri Mohammed Rabeek, had abetted his father in the diversion of container from PSA SICAL Terminal to the godown by way of accompanying Shri Binu Raj, Driver. (vii) That Shri A.Ashkar Ali had lent his passport for pecuniary gain and knowingly enabled Mohammed Rabeek to smuggle FMG bars by way of concealment in the guise of personal effects. (viii) That aforesaid persons also appeared to have smuggled and transported foreign origin gold bars from Malaysia through Tuticorin Port, three times in the past.....
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.... 14.02.2016 (Voyage No.442A) filed by M/s.Relay Shipping Agency Ltd. (OEL), Tuticorin for vessel OEL COLOMBO. The officers intercepted the container at PSA SICAL Terminal, Tuticorin Port itself on 15.12.2016. After taking proper permission from the competent authority, the container was taken to mobile scanner installed at Tuticorin port whereupon officers suspected that certain contraband material might have been concealed therein and hence officers escorted the container to Hari CFS under Customs escort for detailed examination. As per the above mentioned IGM and Bill of Lading TALTKL01933916 dt. 04.02.2016, the consignment was filed in the name of M/s.Bin Dawood Travels & Cargo Service for clearance of 132 packages of "stock lot" of Elastic Tapes (Cut Pieces). One Shri Rahamath Ali was found to be proprietor of the said concern. Detailed examination of the container CAXU 3151576 was conducted in the presence of two independent witnesses and the Branch Manager of M/s.Trans Asia Shipping Services (P) Ld., liner agent, on 15.02.2016. Rahamath Ali and his brother Mohammed Rabeek were not available at the time and place of such examination, as they were under judicial custody in conn....
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..../- on Shri S. Mohammed Rabeek under Section 112 (a) ibid; (vii) imposed penalty of Rs. 25,00,000/- on Shri S. Rahamath Ali under Section 112 (a) ibid. (viii) No penalty was imposed on Mr.Roselan, resident of Malaysia under Customs Act on the grounds that the said person was a foreign national. 3.4 In appeal, the Commissioner (Appeals) vide Order Nos.106 to 108 (2018) dt.10.04.2018 upheld the order of original authority. Aggrieved, Bin Dawood Travels and Cargo, S. Rahamath Ali and S. Mohammed Rabeek have filed Appeals Nos.C/41819/2018, C/41820/2018 and C/41821/2018 respectively. 4.1 Appeal C/41432/2018 (Afrin Express Courier Service) 4.2 Pursuant to issue of SCNs dt. 05.08.2016 and 11.8.2016 in the aforesaid cases, DRI forwarded a letter dt. 27.07.2017 to the Commissioner of Customs, Chennai in respect of interception of containers TLXU 2021855 and CAXU 3151576 and results of detailed examination thereof. The Principal Commissioner of Customs, Airport, Chennai thereafter issued a SCN dt. 7.9.2017 to Afrin Express Courier Service (hereinafter referred to as 'Afrin') (Proprietor Shri Rahamat Ali), holder of Courier Registration No.04/2009 dt. 24.03.2009, in terms of provisions of....
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....Malaysia which was to be gifted to relations and friends of them in Tamilnadu. The consolidation of baggage or cargo was done at Malaysia by Roselan of Bin Dawood Cargo and Travels SDN BHD (which was later renamed as Rahbiah Bi Enterprise, in the name of one of the partners there) (vii) While small packages would come in the form of unaccompanied baggage from a person coming on Transfer of Residency Rules, larger baggages would come as cargo in a container. (viii) Exporter in Malaysia would collect goods from various labourers in Malaysia and consolidate it in a single container and send it to Tuticorin along with the list of consignees and their addresses. (ix) Rabeek used to clear the containers/unaccompanied baggage from CFS using a local CHA i.e. Mr. Selvaraj on payment of duty and fines as per Circular Number 35/2007 dated 28.09.2007 and take it to a rented godown located 24 km away from Tuticorin Port. The godown was used for unloading, repacking in smaller size, sorting out in packs and making it ready for delivery. (x) Once this is done, part of the consignment was handed over to Rahamat Ali for delivery to Chennai and areas surrounding Chennai. And the other part is di....
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....er of the Appellant dated 28-3-2016 dated 38 of Additional paper book submitted during the course of hearing. (xviii) The Show Cause Notice and the order have not disputed the fact that the appellant acted only as a door to door delivery agent and abetted in the smuggling of gold by the Malaysian party Roselan for a consideration of Rs. 30,000/- per Kg (xix) In fact Roselan (Rahbiah Bi Enterprise) has been served Show Cause Notice DRI / CZU/TTN /VIII/48/02/INT-1/2016 dated 05.08.2016 for the first container and DRI / Customs strangely claimed in para 20 of the OIO 99/2017 that they could not serve second notice DRI / CZU/TTN /VIII/48/03/INT-1/2016 dated 11/8/2016 (just 6 days from the first notice), in the absence of contact details. In fact Roselan's Reply to the second as well as first SCN is on record and has been recorded in para 32 of OIO 96/2017 (page 23) relating to first container as well as in para 17 (page 13) of OIO 99/2017 relating to second container. (xx) Adjudicating Authority has categorically admitted in sub para 22 of para 47 of the OIO 99/2017 (page 44 of OIO) that Mohamad Rabeek and Rahamat Ali are not the actual owners of the gold and in para 20 of the same....
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....irm to Roselan and Rahbiah, the other two partners of the firm. (iv) Rabeek after return started door-to-door courier service in India and since he did not have any premises, he started his business using the appellant's office. Since, Rental agreement was required for getting registration for his business, he used the Rahamat Ali rental agreement and stared the business named M/s.Bin Dawood Tours and Cargo. (v) His brother Rabeek was in complete control of the business of door-to-door delivery and Rahamat Ali was used only to deliver the goods to Chennai and certain districts surrounding Chennai. However, his brother Rabeek was taking care of customs clearances of goods imported from the entity in Malaysia in Tuticorin, handling cargo, sorting and repacking wherever required for ultimate delivery. (vi) This fact has been admitted by Mohammed Rabeek in his letter dated 28.03.2016. Thus, several consignments have been imported in Tuticorin in the above manner where the appellant has genuinely acted only as a delivery man after customer cleared goods sorted by his brother Mohammed Rabeek. (vii) When DRI visited the godown at Mappillaiyurani, Tuticorin, Rahamat Ali along with his ....
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....ad Sadham (Container No 1. TLXU 2021855) (i) Shri Sadham had no role whatsoever in connection with the alleged seizure of the container containing gold. He was implicated for the only reason that he was the son of Mohammed Rabeek and was present at the godown on the day of seizure by DRI officials. (ii) It is pertinent to note that statement was obtained from Shri Sadham which was pre typed and obtained on 26.04.2016 through coercion and threat. He has filed a letter with ADG, DRI on 03.05.2016 explaining the facts in detail. (iii) The Adjudicating Authority has referred to the letter dated 03.05.2016 in Page No. 103 of the order but has contradicted the same by contending that Sadham has not retracted the statement of 26.04.2016. (iv) Thus Sadham is innocent and falsely implicated in this case only because he was the son of Mohammed Rabeek and he had no knowledge or connection with the seizure of gold. Therefore his appeals for setting aside penalties imposed on him maybe allowed by this honorable tribunal in the interest of justice. 5.5 Appeal No.C/41263/2018 - OIO No. 96/2017 dated 28.04.2017 - Shri A.Selvaraj (Container No 1. TLXU 2021855) (i) Shri Selvaraj was implicat....
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...., Roselan had sent an email to liner to hold the container at Colombo and ultimate re-export to Malaysia. Copy of the email sent by the Malaysian entity to liner is at page 44 to 48 of the Paper Book. (ii) However later, it was found that, DRI contacted not only the liner but also the Tuticorin Customs Officials, Port Officials at Srilanka, Cargo Handlers, Srilankan Customs etc. and insisted that the liner should bring the container to Tuticorin instead of holding it in Colombo or sending it back to Malaysia. (iii) It was learnt from liner that, vide letter issued in File No. DRI/CZU/TTN/VIII/48 dated 06.02.2016 from DRI, this direction was given to the liner. The liner fearing for action by DRI, brought the container from Colombo to Tuticorin which was later seized by DRI. (iv) Thus, no attempt was made by the appellant to smuggle gold into India in respect of this container and consequently none of the persons implicated in this order have contravened Section 111 of the Customs Act to warrant penalty under Section 112. (v) When the parties involved wanted to prove this, under discussion and findings in the impugned order, the authority stated in Para 18 of the OIO as under : ....
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....d goods which are not included or not included or are in excess of those included in the entry made under this act or in the case of baggage in the declaration made under Section 77. Not Applicable in view of above. (vii) When none of the subsections mentioned in Section 111 is contravened, there is no question of invoking Section 112. In this case also, the Appellant or the others implicated in the impugned are not the owners of the gold; and therefore, the Appellant is not challenging the confiscation of gold (viii) The Tribunal may thus set aside the penalties imposed on Mohammed Rabeek in the interest of justice, particularly when gold has been confiscated and Appellants are not owners of gold or alternatively levy nominal penalties in the interest of justice. 5.8 Appeal No. C/41820/2018 - OIO No. 99/2017 dated 08.05.2017 - Shri Rahamath Ali (Container No 2. CAXU 3151576 ) (i) The second consignment contained 5.999 Kgs of Gold sent in a form of a cargo containing elastic tapes, cigarettes etc. This container was in Colombo and the Appellant was in judicial custody. (ii) After the seizure of first container, the DRI officials compelled the Srilankan Customs Authorities, t....
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....ute about the fact that appellant is only a courier agent and not an illegal importer of contraband goods. vii) Also, without prejudice to other submissions, penalty for same offence cannot be levied separately on both proprietorship firm and proprietor. Reliance is placed on Vinod Kumar Gupta Vs CCE - 2013 (287) ELT 54 (P&H) and CCE VS Gyanchand Jain - 2015 (321) ELT 199 (Bom.) 6. Appeal C/41432/2018 OIO No. 245/2018 dated 12.03.2018 - Afrin Express Courier Service (i) Afrin Express is an authorized courier registered under Courier Import and Export Regulations 1998 from 24.03.2009 with Chennai customs with no blemish. (ii) License granted to Afrin Express was cancelled by Commissioner of Customs Chennai vide Order in Original No. 245/2018 dated 12.03.2018, based on DRI letter dated 27.07.2017 enclosing two Show Cause Notices issued in connection with smuggling of gold in Tuticorin. (iii) In Show Cause Notices, Rahamat Ali the owner of Afrin Express has been alleged to have helped his brother in smuggling of gold consigned to Tuticorin, twice vide container No. TLXU2021855. (iv) However no Show Cause Notice has been issued to Afrin Express by DRI in those two notices nor Ra....
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....for transportation to CFS. v) Mohammed Rabeek and Rahamath Ali can be said to be owners of the goods and have actually smuggled the goods. Considering the quantity of the gold and other contraband seized from the container and godown and the value thereof, the penalty of Rs. 75 lakhs each imposed under Section 112 ibid on Mohammed Rabeek and Rahamath Ali is very much commensurate to their offences. 7.3 In respect of Appeal C/41262/2018 filed by M. Mohammed Sadham i) He was the son of Mohammed Rabeek and was also actively involved in the clearance of the contraband to Tuticorin Port. In the instant case also he had gone with the driver Binu Raj for bringing the container to the godown while in transit from Port to CFS. Hence for these reasons, penalty of Rs. 15 lakhs imposed on him is very much commensurate to the offence. 7.4 In respect of Appeal C/41263/2018 filed by Shri A. Selvaraj i) He was the proprietor of K3N Shipping Services and has been implicated as an abettor in their entire operation of smuggling by Shri Mohammed Rabeek and Rahamath Ali ii) Shri A. Selvaraj has also given details of the entire modus operandi. Penalty of Rs. 10 lakhs imposed on him under Section....
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....y way of diverting containers from PSA SICAL Terminal, Tuticorin Port to their private godown and after removal of contraband, the containers were sent to CFS for examination to hoodwink the Customs. (v) The claim of innocence about smuggling of contraband and gold by Shri. Mohammed Rabeek and Shri. Rahamath Ali cannot be accepted at face value since they have made several requests for provisional release of the seized goods. From the facts on record, their defence that they acted only as per the instructions of Shri. Roselan of Malaysia and were not aware of smuggling cannot be accepted. (vi) For these reasons, the penalties under Section 112(a) of the Customs Act, 1962 of Rs. 50,00,000/- on M/s. Bin Dawood Travels and Cargo and Rs. 25,00,000/- on both Shri. S. Rahamath Ali and Shri. S. Mohammed Rabeek are very much justified. 7.8 With respect to Appeal No. C/41432/2018 - M/s. Afrin Express Courier Service : (i) The proceedings against M/s. Afrin Express Courier Service were initiated pursuant to the report by the DRI about the involvement of Shri. S.Rahamath Ali, Proprietor of M/s. Afrin Express Courier Service, in two different cases of illegal import of gold and other cont....
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....oborated with material evidence and it is illogical to claim that he was unaware of any such concealed items. ii) Now the appellant cannot claim innocence, as at least after the exporter admitting about the concealment of gold, Shri.Rabeek should have alerted the customs authorities about the concealment to prove his commitment to the law of the land. iii) Shri.Rabeek had admitted to handle the cargo for monetary benefit which revealed the conscious attempt on his part to illicitly transporting the cargo, on multiple occasions. iv) It was noticed that in the godown of M/s Bin Dawood Tours and Cargo, there was a 'One Time Seal' bearing no '021288' in dark blue colour, which was nothing but the seal number of the container TLXU 2021855, wherein 11.993 kgs of foreign marked gold bars were seized, evidenced that the seal was prepared for resealing the container, after directly bringing from PSA Sical Terminal, after de-stuffing the contraband in the godown. v) Shri Rabeek has admitted that he had imported gold in the past three times, based on the material evidence brought out during the course of investigation. vi) The fact that when the number of packages declared in container n....
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....Shri Rahamath Ali in his statements has admitted diverting of import containers to the go-down rented in the name of M/s Bin Dawood Cargo & Travels, owned by him, illicitly unloading of goods including cigarettes before customs clearance and replacing the original One Time Seal (OTS) with a bogus one. iv) The presence of Shri Rahamath Ali along with Shri Mohammed Rabeek on 10.02.2016, in the godown premises, expecting the container TLXU2021855 for removing the packages containing gold from the container, clearly indicates the role of them and their knowledge about the smuggling activity from the beginning. Hence it becomes clear that the appellants were very well cautious about their respective roles especially Shri.Rahamath Ali and can no more claim innocence to the smuggling activity. v) Shri Mohammed Rabeek and Shri Rahamath Ali have not brought on record any evidence to show that the statement dated 11.02.2016 of Shri Rahamath Ali and of Shri Mohammed Rabeek dated 11.02.2016 and 22/23.03.2016 were obtained under duress. vi) There was no allegation that Shri Rahamath Ali had travelled to Malaysia, to arrange or organize the smuggling of gold and cigarette. vii) Though there ....
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....n of the appellant, not based on facts. As the request of the appellant for supply of documents, which only existed in the imagination of the appellant, was not relied upon in the case on hand, the Adjudicating Authority rightly denied the request. The denial of request would in no way take away the role played by the appellant in making arrangements for receipt of the container with 180 cartons (18,00,000 sticks) of foreign cigarette, 128 packages of household articles, including six packages with one-kilogram gold bar each, all in the name of import of 'stock lot of elastic tape' in the name of M/s Bin Dawood Travels & Cargo Services, owned by Shri Rahamath Ali. ii) The container said to contain 'stock lot of elastic tape' was imported in the name of M/s Bin Dawood Travels & Cargo Service, owned by Shri Rahamath Ali. Thus Shri Mohammed Rabeek and Shri Rahamath Ali were fully involved in the illicit import of gold and cigarettes along with undeclared household articles in the container CAXU3151576, consequently liable for penal action under Section 112 of the Customs Act, 1962. VI Mohammed Rabeek: Appeal No. C/41821/2018 : Container CAXU3151576: i) The appellant had already ma....
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....citly transport and deliver goods cleared clandestinely, without the knowledge of the customs authorities, from the import containers. Shri Rahamath Ali and his brother Shri Mohammed Rabeek jointly orchestrated gold smuggling in the guise of door to door delivery service. Hence the claim of authorised courier service since 2009 without blemish doesn't hold good. ii) Shri Rahamath Ali is the proprietor of M/s Afrin Express, an Authorized courier. M/s Afrin Express, a proprietary concern has no independent legal existence, independent of its proprietor. Hence, no separate Show Cause Notice was required to be issued to M/s Afrin Express. iii) The illegal activities indulged in by the proprietor, will have a bearing on the concern owned by him. iv) While under Regulation 13 of Courier Imports and Exports (Clearance) Regulations, 1998, the authorized courier is obliged to advise his clients to comply with the provisions of the Customs Act, 1962, in the present case the authorized courier himself has violated the provisions of the Act with impunity. 9.0 Heard both sides and have gone through the facts. 9.1 The issue that comes up for decision in these cases can be framed as under : ....
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....1855 Mohammed Rabeek claims that he got to know about concealed gold only because Mr. Roselan specifically had requested him to handle certain packets carefully and deliver to persons ; that this aroused suspicion and only upon repeated enquiry, Roselan admitted concealment of gold and persuaded him to handle the clearance and delivery on additional consideration of Rs. 30,000/- per kg. 10.8 Shri Rahamath Ali has contended that after return of his brother Mohammed Rabeek from Malaysia in 2002, the latter had started his business namely M/s.Bin Dawood Tours & Cargo and only for getting registration, he had used rental address of the rental agreement of his own office. He has further averred that Rabeek was in control of the business of door to door delivery and that he was used only to deliver goods to Chennai and certain districts surrounding Chennai. He has also contended that Mohameed Rabeek was only taking care of customs clearance of goods imported from the entity in Malaysia and handling, sorting repacking etc. of the said cargo. Rahamath Ali has alluded to a letter of Mohammed Rabeek dt. 28.3.2016 to support his averments. He submits that he was present in the godown when DR....
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....t pieces of gold valued at Rs. 3,43,01,124/- were recovered from the container which was intercepted by the DRI officers. There also cannot be any dispute that 4,00,000 sticks of foreign origin cigarettes valued at Rs. 30 lakhs were seized in the godown. 11.3 On the flip side, we find some unexplained aspects in the manner of investigation carried out. Even as per the first part of the SCN dt. 05.08.2016, there was specific intelligence that the container TLXU 2021855 containing gold bars to be smuggled into India through Tuticorin Port would be diverted to a private godown and replaced by another container covering cover goods. If there was such specific and clear intelligence about the entire modus operandi, we are unable to fathom why the DRI officers in their wisdom preferred to intercept the container within the Tuticorin Port. It is pertinent to note that at the time of interception, the container had not left Tuticorin Port, and not reached godown. Possibly, because of this, the swapping of goods and / or container at the godown could not be caught red-handed. Ld. Consultant for appellants has submitted a reply dated 26.12.2018 from the Custom House, Tuticorin, in response ....
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....bility. He finds the retractions the retractions as "bald", though it has not been amplified as to what should have been the method, manner and content of such retractions so as to be considered "hirsute". For such petty reasons, the authority has refused cross examination. In our view, the denial of cross examination will only provide an Achilles heel to the defence to contend that had such cross examination been given, they would have proved their innocence and would have crossed the adjudication stage dry and safe. 11.4 Nonetheless, these protagonists cannot deny the seizure of the 12 FMG bars etc. from the container TLXU 2021855, very much evidently handled and cleared by them , though ostensibly in the name of one Shri Askhar Ali. While not granting of cross examinations does weaken the adjudication order, there is no dispute that gold was seized from the container which was handled by Mohammed Rabeek with a little help from Rahamath Ali. Further, cigarettes were found and seized from the godown of Bin Dawood Cargo rented by Shri Rahamath Ali, where both the brothers were found at the time of search. We hold that there are enough web lines of complicity and involvement of the....
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....of Rs. 75 lakhs each has been imposed on them under Section 112 (a) of the Customs Act, 1962. In the first place, we find that the related SCN while proposing personal penalty on these persons had only indicated Section 112 ibid without mentioning the sub section (a). Be that as it may, Section 112 (a) is a penalty imposable on the person who in relation to any goods does omits or acts to do act which act or omission would render such goods liable to confiscation under Section 111 or abets doing or omission of such act. The SCN is a bit hazy as to whether Mohammed Rabeek and Rahamath Ali require to be penalized for smuggling the gold as owners thereof or whether they are only guilty of having abetted Roselan of Malaysia to facilitate the smuggling of gold sent by him into India and later handover the same to specified persons as instructed by Roselan, using the facilities available with Mohammed Rabeek and Rahamath Ali. Even though the Ld. AR has contended that Mohammed Rabeek and Rahamath Ali not only facilitated smuggling of gold but also owners of smuggled gold, there is nothing forthcoming in the SCN or for that matter, in the adjudication order of the lower authority to subst....
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.... out. Or for that matter, the beneficiaries to whom the smuggled gold in earlier cases, and even the present seizure, had been handed over / would have been handed over, on the instructions of Roselan have not been identified. 11.9 In such a scenario, while no doubt Shri Mohammed Rabeek and Shri Rahamath Ali fully deserve imposition of penalty under Section 112 ibid, penalty of Rs. 75 lakhs each imposed on them by the adjudicating authority and upheld by the lower appellate authority is definitely too high commensurate to their individual roles. That Mohammed Rabeek had agreed to get the gold smuggled and handed over to unknown beneficiaries as instructed by Mr. Roselan of Malaysia for a consideration of Rs. 30,000/- per kg only bespeaks of an abettory role and not an ownership role, a fact confirmed by the Revenue in their comments dated 20.02.2019. 11.10 Ld. Consultant has made an interesting prayer that penalty under Section 112 should be commensurate and equivalent to the amount that Rabeek would have earned as additional consideration for abetting smuggling namely Rs. 30,000/- per kg. We find that this is a very laughable proposition. While penalty can surely not to the exte....
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....her Mohammed Rabeek. No incriminating documents or goods were recovered from him or his office. Even in the Revenue's written submissions dt. 20.02.2019 (in response to written submission of the appellant), it has been stated that Rahamath Ali and Rabeek were indulging in the said business with their roles clearly defined. The WhatsApp messages containing photographs of the cartons were gold bars etc. which had been concealed had not been sent to Rahamath Ali by Roselan but to his brother Mohammed Rabeek. In the written submissions filed by Revenue dt. 20.02.2019 it has been conceded that there is no allegation that Rahamath Ali had travelled to Malaysia, to arrange or organize the smuggling of gold and cigarettes; that the allegation against Rahamath Ali was that he along with his brother Mohammed Rabeek organized illicit transport and delivery of clandestinely cleared goods and that they had jointly orchestrated gold and cigarette smuggling. While there cannot be any dispute that Rahamath Ali was in the know of things, he was definitely not the lead actor on the Indian side but instead he was only an accomplice to his brother Mohammed Rabeek. In a manner of speaking, he was only ....
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....nce forthcoming on record that Selvaraj was in any way involved directly or indirectly with the planning, organizing and execution of the smuggling of gold and other contraband in the Container TLXU 2021855. There is no allegation whatsoever that Selvaraj was present either in or near the lorry TN69K8611 carrying container TLXU 8021855 which was intercepted by D.R.I. and or for that matter that he was present in the godown when the officers visited the place. There was no allegation that he was in any way actively involved in the planning of smuggling of gold or that he was in touch with Roselan for that purpose. Considering all these factors we hold that the penalty imposed of Rs. 10 lakhs on A. Selvaraj @ Selvam under Section 112 ibid. is not justified and is therefore set aside. So ordered. Appeal C/41263/2018 is allowed in toto. 14. Appellant Shri A.Akshar Ali comes through as an unwitting victim of the whole modus operandi. A man of minimal means, working in a grocery shop in Malaysia, he has only lent his passport copy to be used in the import of goods. In this type of imports, unaccompanied baggages of many persons are loaded in a single container as observed by the Board's....
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....JARUM" clove cigarettes valued at Rs. 1,35,00,000/- were also recovered and seized. 16.5 However, what we find disturbing is that even though as per paras 1 & 2 of SCN dt. 11.08.2016, it has been claimed that DRI had specific intelligence that gold is being smuggled into India through Tuticorin port in the container CAXU 3151576 arriving from Malaysia and that the container was intercepted after arrival at the port, however, there is no mention or clarity anywhere in the notice whether import documents had been filed by Bin Dawood Travels & Cargo or any other person after arrival of the container. If the DRI officers, as claimed in the SCN, were indeed constantly monitoring the progress of the said container, they would have very well also monitored the filing of import documents for the said container so as to connect any contraband therein with the person who claims to be the importer thereof. Appellants herein have also averred that they had not filed any import documents in respect of the said container CAXU 3151576 themselves. In the event, though the notice very strongly propositions that import of the container was only done by the two appellants herein, nonetheless this as....
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....etter dt. 14.6.2016 addressed to the Commissioner of Customs, Tuticorin had informed that they had wrongly shipped the container CAXU 3151576 to India instead of sending the same to Colombo in the OEL Colombo voyage; however D.R.I Tuticorin compelled the liner to bring the said container into India; that the container was forcibly brought into India from Colombo by D.R.I officers and examined on 15.2.2016 when they were in judicial custody in Madurai Jail. Rabeek has also contended that if they had opportunity to clear the said container they would have declared the gold in their Bill of Entry; that they were deprived of that opportunity; that they had not made any declaration to customs officer for the purpose of customs clearance mentioning the contents since seizure was effected before declaration; hence ground of seizure that "when declaring to customs and without payment of duty" is not correct; that the gold is not prohibited goods. 16.8 It also emerges that vide letter dt. 29.11.2016 the advocate for the appellants before the lower authority requested for adjournment of the personal hearing to last week of December 2016 on the ground that some unrelied upon documents were y....
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.........". It is pertinent to note that the adjudicating authority while denying the request for supply of the documents has not categorically denied existence of those very documents. 16.10 In the statements of Mohammed Rabeek recorded on 22.03.2016 and 23.03.2016 (later retracted) wherein inter alia, he gave details of clearance of goods as unaccompanied baggage sent by his friend Roselan of Malaysia, for the past 10 years and had been handing over the goods to the concerned persons and received Rs. 15/- per kg; that he would unload the customs cleared import goods in the godown rented out by his brother and would distribute the same ; that after there was decrease in volume of courier goods and after discussion with Roselan, he started getting containers brought to the godown directly from PSA SICAL Terminal, cut the original seal and destuffed goods and seal the container with duplicate seal sent in the import container and thereafter the container with the quantity as declared in Bill of Lading was delivered to CWC Navasheva CFS for examination. Mohammed Rabeek further stated that he agreed to assist Roselan to smuggle gold by the former and split it and handed over it over to ....
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....een footloose and free, they would very well have filed import documents for the container load, moved the container out of the port and taken it to their godown for possible removal replacement / swapping of goods and / or container. 17. Viewed in this light, we are of the considered opinion that the acts and omissions on the part of Mohammed Rabeek and Rahamath Ali will attract penalty for abetting the said attempted smuggling under Section 112 of the Customs Act, 1962. However, the quantum of such penalty will have to be commensurate not only to the degree of proof that the investigation has been able to throw up against these two persons but also / to the degree of complicity and abetment of each of them. 18.1 We then uphold the imposability of penalties under Section 112 of the Customs Act, 1962 on Shri Mohammed Rabeek and Shri S.Rahamath Ali. However, in respect of Bin Dawood Travels & Cargo Service, Shri S.Rahamath Ali, s/o Sheik Dawood has been clearly indicated as the proprietor, in para 8.02 of the SCN dt. 11.08.2016 and also in para 8.02 of the adjudication order dt. 8.5.2017. The same is reiterated in para-6 of the impugned order. Further, the role of Bin Dawood Trave....
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.... held that Mohammed Rabeek has surely played an abettory role in the whole exercise, there is no allegation anywhere in the SCN or in the orders of the lower authorities that the gold actually belonged to Mohammed Rabeek or for that matter, to his brother Rahamath Ali. On the other hand, in the written submissions dt. 20.02.2019 submitted by Revenue (in response to appellant's written submissions) it has been conceded that there are no allegations in the SCNs that Mohammed Rabeek and Rahamath Ali are the owners of the smuggled gold. 18.3 Undoubtedly, there is a needle of suspicion that had the earlier container TLXU 2021855 not been seized and Shri Mohammed Rabeek and Shri Rahamath Ali not been in judicial custody, they would have caused clearance of the second container CAXU 3151576 also, and facilitated Mr.Roselan on the smuggling gold and cigarettes etc. from Malaysia and handed over the same to persons as instructed by Roselan. But it remains only a needle of suspicion. As mentioned earlier, statements from Rabeek have been recorded after the seizure from container CAXU 3151576 which in any case have been retracted subsequently. The main linkage that now connects Mohameed Rabe....
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....e request of Mohammed Rabeeek for cross examination of certain persons. These requests have been denied on the ground that relied upon documents based on which the charges have been made were supplied to Mohammed Rabeek and Rahamath Ali to "see, comment and criticize"; that there is nothing in law to say that right of cross examination of witnesses, noticees is an inalienable right. Further, in his appeal Rahamath Ali has also drawn attention to a letter of Mohammed Rabeek on 28.3.2016 wherein the letter he has stated that Rahamath Ali is not in any way responsible for smuggling of gold in any manner. DRI have recovered and relied upon the e-mails exchanged between Roselan and Rabeek which have been made after the first seizure related to container TLXU 8021855 with regard to calling back from Colombo and the second container CAXU 3151576. There is no allegation that any such e-mails have been exchanged between Roselan and Rahamath Ali. Rahamath Ali has also pointed out that he was not informed by Mohammed Rabeek from where the contraband goods originated, who only was in touch with Roselan or anyone else in Malaysia through e-mail or phone. He has also alluded to the letter of Ros....
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....ervice alleging that Shri S.Rahamath Ali, its proprietor has shown misconduct at Tuticorin Port in two instances for alleged role in illegal import of gold and cigarettes. The SCN referred to Regulation 14 (1) (c) of Courier Imports and Exports (Clearance) [CIEC] Regulations,1998. As per the said Regulation, The Commissioner of Customs may revoke the registration of an Authorised Courier and also ordered forfeiture of security if any "misconduct on the part of the Authorised Courier whether within the jurisdiction of the said Commissioner or anywhere else, which in the opinion of the Commissioner renders him unfit to transact any business in the Customs station. The SCN also alleged that the appellants had indulged in misconduct at other jurisdiction, hence registration granted to them is liable to be revoked as per Regulation 14 (1) (c) of CIEC. The Commissioner of Customs vide the impugned order No.245/2015 dt. 13.03.2018 has referred two Orders-in-Original dt. 28.04.2017 and 08.05.2017 and has taken note that S.Rahamath Ali, brother of appellant has indulged in illegal import of gold and cigarettes at Tuticorin Port in the said two different cases. The adjudicating authority too....
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....in the act of smuggling , may render that person liable as an abettor and by itself it cannot be said that he acted as a CHA for them". (vii) Even otherwise, it has been alleged in the related appeals that S.Rahamath Ali was innocent and is not involved in the attempted smuggling of gold and cigarettes detected at Tuticorin Port. Even admitted three statements of Rahamath Ali dt. 11.2.2016 were retracted by letter dt. 02.3.2016. 19.3. On the other hand, Ld. A.R supported the impugned order. He submits that appellant S.Rahamath Ali has been found implicated in two instances of attempted smuggling at Tuticorin Port of gold and cigarettes. As the implicatory role will only tantamount to misconduct on the part of Rahamath Ali, proprietor of the appellant, hence such misconduct even though has taken place can very well be considered as misconduct for the purpose of Regulation 14 (1) (c) of CIEC as per which the Commissioner of Customs and revoked the registration for any misconduct on the part of the authorized courier. 19.4 However, in the written submissions filed by Revenue on 20.02.2019 it has been contended that Rahamath Ali is proprietor of Afrin Express Courier Service ; Afrin....
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....e diligence to ascertain the correctness and completeness of any information which he submits to the proper officer (d) not withhold any information communicated to him by an officer of customs, relating to assessment and clearance of import goods or inspection, examination or clearance of export goods, from a client (e) not withhold any information relating to assessment and clearance of import goods or of export goods from the Assessing Officer (f) not attempt to influence the conduct of any officers of Customs by use of threat, false accusation, duress of offer of any special inducement or promise of advantage or by this bestowing of any gift or favour or other thing or value. (g) Maintain records and accounts in such form and manner as may be directed. (h) file declarations, for clearance of import or export goods through a person who has passed the examination referred to in Regulation 8 or Regulation 19 of Customs House Agents Licensing Regulations, 2004 (i) verify the antecedent, correctness of Importer Exporter Code (IEC) Number, identify of his client etc. (j) not sub contract or outsource the functions permitted or required to be carried by the authorized career to....
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....math Ali. A person may well be a proprietor of many number of firms or engaged in a slew of different activities. Only because the person or another of his firms has been implicated in an offence under the Customs Act, that infraction cannot, and should not have a domino effect on to the other firms which have nothing to do with the offence charged with the said violation. 21.7 The adjudicating authority appears to have adopted a line of thought that any misconduct, of any sort, by the proprietor of an authorized courier will be a misconduct for the purposes of Regulation 14 (1) (c) ibid. In our view, this is a legally unjustifiable and unintended stretch of the scope of the word "misconduct" in the Regulations. If the premise adopted by the adjudicating authority is to be accepted, even a "family dispute between a proprietor and his family that may lead to some complaint or legal proceedings, or even a road accident involving as the proprietor etc. would be all enough to damn the authorized courier for the purpose of Regulation 14 (1) (c) and justify revocation of the registration. Surely, this is not the tenor and purpose of Regulation 14 (1) (c) ibid. 21.8 From the facts on re....