TaxTMI 
TaxTMI 
2023 (1) TMI 1148
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.... of M/s. Shankeshwar Impex Pvt. Ltd.(Importer) since 2016. Mr. Abhishek Mishra - appellant is in appeal against imposition of penalty of Rs.1,00,000/- under Section 112 and Rs.5,00,000/- under Section 114 AA of the Act. 4. Mr. Dhananjay Kumar Singh (appellant) introduced one Mrs. Sonia of PRM International Hong Kong Ltd. to the appellant CHA - Krishna Logistics, stating that she is known to Mr. Mohit Jain, Director of M/s Shankeshwar Impex Pvt. Ltd. Therefore, without any doubt, Krishna Logistics accepted the request of PRM International for clearance of import consignment and assigned the work to Mr. Upendra Kumar Chaubey (appellant), who was the local representative of Mr. Mohit Jain in Delhi. The Customs clearance work was given to Mr. Sangam Mishra, employee of CHA- M/s. Krishna Logistics, by Mr. Upendra Kumar Chaubey. 5. Prior to filing of Bill of Entry on 28.07.2017 at Air Cargo Import Shed, attempt was made to remove the consignment covered under AWB NO.160 857 15652 dated 22.07.2017 consisting of two pallates by using a fake and fabricated gate pass no.N.201707260763 dated 28.07.2017, without filing the Bill of Entry and without payment of Customs duty. The said attempt t....
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....llery (Assorted) for 950 kgs. Valued at USD 4,65,500/- was recovered and resumed. 11. During the investigation, statements of various persons alleged to have been involved in the foiled attempted removal made on 28.07.2017 on fake/fabricated gate pass and persons instrumental in filing of Bill of Entry No.2656737 dated 30.07.2017 on fake/fabricated AWB, as well as of importer and warehouse custodian were also recorded under Section 108 of the Customs Act, 1962. 12. It appeared to Revenue that the some people in connivance have attempted to remove imported goods on 28.07.2017 by using fake/fabricated gate passes and on being unsuccessful, have filed bill of entry on forged/fabricated Air Way Bill (AWB). It appeared that Mr. Dhananjay Singh - appellant, Upendra Kumar Chaubey-appellant, Mohit Jain, Abhishek Mishra - appellant, Vijay Kumar, Satish Kumar and M/s. Shankeshwar Impex have connived in attempted removal of imported goods on fake gate passes without filing bill of entry. CELEBI DELHI CARGO TERMINAL MANAGEMENT INDIA PVT. LTD. 13. So far the appellant, M/s. CELEBI Delhi Cargo Terminal Management India Pvt. Ltd. are concerned, they are custodian of the import warehouse, dul....
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.... wrongly, at the behest of the employee of CHA and not at the instructions of the responsible staff of CELEBI, thus, M/s. CELEBI have compromised the safety and security of the goods. The contention of CELEBI is that they have installed best possible internal control and available security measures including but not limited to x-ray screening machines, security personnels, CCTV cameras at the facility to cover the entire warehouse and secondly, their own security staff foiled the attempted removal. However, ld. Commissioner observed that the goods in question were moved to pre-delivery area then to final delivery area without proper instructions/supervision of CELEBI and hence, negligence on their part is established. Further, held that they have violated the provisions of Section 45 of the Customs Act, which mandates that the custodian of imported goods shall keep record of the goods and shall not permit such goods to be removed or otherwise dealt with, except with the proper permission of the Customs officers. Under the facts and circumstances, CELEBI has violated the provisions of Section 45. M/s Shankeshwar Impex Pvt. Ltd. and Mohit Jain -Director 17. Ld. Commissioner observ....
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....e description of the goods was given as - "Garment accessories without batteries. It clearly suggests that wrong description in the AWB was made purposefully. As with correct declaration, the consignment would have been stored at the valuable warehouse of CELEBI. Further, M/s Shankeshwar Impex and Mr. Mohit Jain at various points of time including in their defence reply, have admitted import of the said consignment. Thus, it is evident that Mr. Mohit Jain not only knew before hand, but was the fulcrum around which modus of attempted removal was made. Thus, the involvement of M/s. Shankeshwar Impex Pvt. Ltd. and Mr. Mohit Jain is established. 20. It is further observed that Mr. Mohit Jain has not asked for cross examination of any deponent/witness. Thus, is liable to penalty under Section 112 read with Section 111 (j) of the Act. Further, is liable to penalty under Section 114AA of the Customs Act for knowingly using the forged /fabricated gate pass in the attempted removal of the goods. Dhananjay Kumar Singh 21. It has been alleged that he colluded with Mr. Mohit Jain of M/s Shankeshwar Impex and was involved in the foiled attempt of removal of imported goods, without filing of....
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....ay Kumar Singh in his own statement had admitted his involvement in the attempted removal of the goods on 28.07.2017 and thus, he is liable for penalty as an abettor under Section 112 of the Act. There is no necessity of the abettor and the abetted being in proximity of the scene of offence. Abetment is corroborated by inducement of the abetted person for committing an offence, which can be done even remaining away from the place of offence. It is further observed that this appellant in his statement had admitted that while he was away at the time of attempted removal of goods on 28.07.2017, he received a call at around 9.30 p.m. from Shri Abhishek Mishra and was informed that the consignment was stopped by a security guard of CELEBI. Thus, in spite of being away from Delhi, he was keeping a tab on the plan of removal, showing or proving his involvement. The allegation is further proved in view of the fact, in striking of deal with the cargo consolidator (Ms. Sonia) for Rs.750/- per kg. and thereafter, engaging Mr. Abhishek Mishra for the attempted removal. Interaction with Mr. Abhishek Mishra is supported by call detail records. 23. Accordingly, ld. Commissioner held that Mr. Dha....
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....d called him on his mobile phone between 5.30 p.m. to 6.00 p.m. on 28.07.2017 and told that he is sending one Mr. Pramod Kumar with the gate pass pertaining to the goods and by showing this gate pass to the security guard at 'FD' gate, these goods have to be cleared. Thereafter, he received the gate pass from Mr. Pramod Kumar at about 6.50 p.m. On the basis of the said gate pass, he attempted to clear the consignment in a bona fide way not having any knowledge of its forged nature. There is no mens rea or forgery on the part of this appellant and thus, no penalty is imposable on him. This appellant had further stated that he came to know about irregularity or forged nature of the said gate pass only when delivery was refused by CELEBI staff. Ld. Commissioner held that mens rea or knowledge is not necessary for imposition of penalty under Section 112 of the Act. As regards the contention of the appellant that as he has not fabricated any gate pass, penalty under Section 114 AA of the Act is also not imposable was rejected by Ld. Commissioner, observed that penalty under Section 114 AA of the Act is imposable on use of false and incorrect documents. Mr. Abhishek Mishra has admittedly....
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....s.60 lakhs. 27. Assailing the impugned order, ld. Counsel for the appellant - Mr. Dhananjay Kumar Singh, inter alia, urges that the statement of this appellant was recorded under coercion and his statement was recorded as dictated by the officer. Thereafter, he was arrested and thereafter remanded to judicial custody by the Court of CMM, New Delhi. At the very first instance on 11.01.2018, this appellant had retracted his statement in his bail application and had categorically denied his role or any knowledge of the attempted removal on 28.07.2017. Further, the impugned order is bad as an opportunity to cross examine the other co-noticees, whose statement is relied upon, was not given. Ld. Commissioner has failed to exercise the jurisdiction vested in him to ensure the attendance of witnesses. Although he allowed the request for cross examination, but the same was a nullity as he did not ensure the attendance of the witnesses for examination/cross examination. Ld. Commissioner has simply observed that he had issued 3-4 summons but witnesses did not appear. Thus, the order of penalty is bad, which has been imposed relying upon the statement of other persons in violation of the prov....
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....emoval of the goods on 28.07.2017 on the basis of the gate pass given to him by Mr. Pramod Kumar as per direction of Mr. Dhananjay Kumar Singh. Thus, evidently, there is no involvement of this appellant. Further, statement of Mr. Mohit Jain, Director of M/s Sankeshwar Impex has been accepted, who in his statement stated that Mr. Abhishek Mishra was acting on the direction of Mr. Dhananjay Kumar Singh, for using the forged gate pass. It is further urged that apart from the statement of the co-noticees, there is no other cogent evidence against this appellant. Observation of the ld. Commissioner is baseless, wherein he had observed that the co-noticees, which are also the witnesses, have avoided to appear for cross-examination in mutual interest. It is a settled law that no demand or penalty can be confirmed solely on the basis of the statement of co-noticee without any corroborative evidence. The rulings stated hereinabove in the case of Dhananjay Kumar Singh are also relied upon for this appellant. 30. Assailing the impugned order, ld. Counsel for Mr. Abhishek Mishra, inter alia, urges that this appellant had bonafidely relied on the gate pass and other documents provided to him b....
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....d that this appellant is not party to any of the fraudulent act(s) done by Shri Dhananjay Kumar Singh and others. This appellant have, on proper instructions and under proper authorisation received from the Director of M/s. Shankeshwar Impex, filed the bill of entry on 30.07.2017. Whatever mischief has been done by the other appellants is in connivance with each other, this appellant is nowhere associated nor connived in any manner. Further, urges that Revenue had made bald allegations against this appellant that they did not verify the authenticity of the documents of M/s.Shankeshwar Impex received through Shri Upendra Kumar Chaubey on the directions of Shri Dhananjay Kumar Singh. Further allegation is that this appellant filed the bill of entry declaring the goods as Silver Jewellery (Assorted). Whereas in the Airway Bill received by the appellant, it was mentioned as "Jewellery without battery". 33. Ld. Counsel further urges that this appellant had filed bill of entry relying upon the documents, which appeared to be proper and was not having any idea of the forged nature of the Airway bill. Further, this appellant filed the bill of entry on first check basis and had requested f....
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.... entry by resorting to forgery and delivery without actual gate pass. Accordingly, penalty imposed on Shri Dhananjay Kumar Singh of Rs.5,00,000/- under Section 112 and Rs.20,00,000/- under Section 114 AA are confirmed and his appeal is rejected. 36. So far Shri Upendra Kumar Chaubey is concerned, I find that he has actively connived in the whole episode of smuggling, morefully described hereinabove. He has knowingly used forged documents like gate pass etc. having knowledge of its forged nature. However, he is a person of small means and employee of the importer - M/s.Shankeshwar Impex. I find that penalty imposed upon him is disproportionate. Accordingly, I allow his appeal in part. I reduce the penalty of Rs.4,00,000/- under Section 112 to Rs.1,00,000/- and penalty of Rs.15,00,000/- under Section 114 AA to Rs.3,00,000/-. 37. So far Shri Abhishekh Mishra is concerned, he is H-Card Holder employed with CHA firm viz. M/s Aeroship Logicare Pvt. Ltd., being engaged in the Customs clearance work for the last few years, was aware of the basic Customs procedure. Further, he was promised for Rs.10,000/- for abetting in the smuggling done by Shri Dhananjay Kumar Singh. Normally, this hig....