TaxTMI 
TaxTMI 
2023 (12) TMI 573
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....nt for the impugned adjudication are as follows: 3. The department got specific intelligence about container no.KKFU7222266 to have contained misdeclared goods. Investigations were initiated by the officers of DRI. On 28.5.2012, it was found that the said container alongwith other containers had moved out from ICD, Tukhlakabad (hereinafter referred to as "TKD"). On verification, investigating team observed that the container was removed on 25.05.2012 without filing any Bill of Entry but by using manual customs gate pass. On enquiry, it was found that the signatures and stamps on the customs gate pass were forged. The fact was got confirmed by Central Forensic Science Laboratory (CFSL), Chandigarh. All the officers whose names mentioned on the gate pass were examined. They also denied their signatures on the said gate pass and also denied any knowledge about preparation of those gate pass. Other details of customs gate pass i.e. with respect to bill of entry, duty amount, etc. were also found to be incorrect. The CONCOR gate passes were fraudulently obtained based on these forged customs manual gate passes. Statement of Shri R.K.Mahapatra, Junior Executive (Commercial Operations)....
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.... DRI also examined him on 31.5.2012, 01.06.2012 and on 25.07.2012. He admitted for importing air conditioners and LED TVs. Since 2006 in name of the firms which got opened in the name of his relative, (i.e. M/s. Star Aircon and M/s.M.C.Overseas). Mr. Manu, Mr. Naresh Kumar respectively with himself and Mr.Rohit Sakuja as partners. His premises also got searched. From the total searches conducted following goods categorized as below were found to be illegally imported.: Category/type of goods Description and other details of the goods in each category A. Goods fraudulently removed from ICD, TKD in the aforesaid eight containers 1. 6382 pcs. of imported R-22 gas cylinders of 13.6 Kgs each (import 'restricted' in the FTP), seized at gowdon in lane adjacent to Dr.Lakra's clinic, Village Ranhola, Nangloi and later shifted to CWC godown, Saibahad. 2. 50 pcs of imported R-22 gas cylinders of 13.6 Kgs each, detained at godown premises of Shri Satish Kumar Chadha, Delhi under panchnama dt.12.06.2012. 3. 16 pcs of imported R-22 gas cylinders of 13.6 Kgs each, detained /seized at godown premises of Suman Enterprises, C-3/5 and 4/5, Ground Floor, Lal Quarters, Krishna Nagar, ....
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....spiracy to remove eight containers clandestinely in a systematic pre-planned manner from ICD, TKD on the strength of forged Customs documents. In addition they also removed contraband goods, but also removed the goods the import of which is restricted under Foreign Trade Policy, in total disregard to national exchequer, national environment as well as the economy. Resultantly show cause notice dated 28.5.2013 was served upon the appellants alleging that the impugned imported goods as tabled above having collective assessable value of Rs.7,71,56,730 and air conditioners having collective assessable of value Rs.2,73,144/- inviting total duty amounting to Rs.2,25,36,349/- were illegally imported and fraudulently cleared by the appellants in eight containers. Hence they were proposed to be confiscated. The said amount of duty was proposed to be recovered: Penal action in terms of sections 112, 114A and 114AA of Customs Act,1962 for master minding the entire operations of fraudulent removal of goods on the strength of forged documents, evasion of duty, illegal import of restricted goods without valid import licence , The total duty amounting to Rs.61,48,024/- alongwith interest, i....
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....he facts and evidence placed on record. It is mentioned that the role of the Appellant admittedly starts when the importer has obtained the valid computerized gate pass from the CONCOR, and thereafter the Appellant has asked the Transporter Mr. Bharat Vidhuri to help the importer to get the imported goods transported to their warehouses as per their wishes. When the goods have been transported on the basis of the gate pass which appeared to have been issued by proper authority then no wrong can be attributed to the Appellant for illegally removing the goods of the importer in contravention to the laws laid down under Customs Act, 1962. Moreover, no one either being witness or being otherwise related in the present case had named the Appellant. 11. That the whole story of the respondent to connect the Appellant with the alleged clandestine removal of goods from ICD, TKD by procuring illegal and forged gate passé is based upon the Statement given by one daily wager, Sushil Kumar as was under Section 108 of the Customs Act, 1962. He on face of it appears to be a planted witness by DRI to make a wrong case against the Appellant. 12. None of the observations reflects that t....
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....g, keeping and selling of R-22 gas was also engaged in keeping and dispatching the cigarettes through his godowns. He had purchased, kept and sold 600 cylinders of R-22 gas and kept and dispatched 1100 cartons of cigarettes so imported by Shri Rohit Sakhuja. 16. It is further mentioned that penalty under section 112 of the Act was leviable upon the appellants only when they had abetted or they had reason to believe that the goods were liable to confiscation under section 111. But these appellants had no knowledge at all about the smuggled nature of the goods. They had purchased the goods in good faith and in bonafide manner. Even Vijay Kumar Sharma who had sold the goods to Satish Kumar Chadha and Dillip Singh Jain had no knowledge about the instant act of alleged smuggling. In this connection, Shri Vijay Kumar Sharma in his statement dated 11.07.2012 has stated that he had purchased the goods from one Shri Rohit Sakhuja (a person who is main Noticee in the instant matter). Moreover a number of statements of number of persons were recorded but none of them has stated that these Appellants had any knowledge of the alleged illicit act or that they were complicit with that. 17. ....
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....is of conjectures and surmises and that there is no material and cogent evidence. It is mentioned that the goods have been cleared on the basis of documents handed over by CHA of the importer entire case is concocted rather main link in the investigation is missing, the benefit of doubt must be given to the appellant. The order under challenge is liable to be set aside. 22. To rebut the above submissions, ld.DR has mentioned that the investigations in the present case revealed that Shri Ajit Singh Chadha and Shri Rohit Sakhuja had hatched a conspiracy to smuggle ACs, gas cylinders, cigarettes etc.with the help of Shri Pradeep Kumar, Shri Sandeep Kumar and Shri Raju Kumar. With the help, they procured gate passes from CONCOR and got the goods cleared. The goods were loaded on trucks of Bharat Transport owned by Shri Bharat Vidhuri. The same were offloaded at godown of Shri Ajit Singh Chadha in the presence of Shri Ajit Singh Chadha and Shri Sanjay Kumar. The goods were destuffed with the help of labour supplied by the labour contractor, Shri Vinod Kumar. Recovery of broken seals and sticker of one of the said eight containers also confirms the alleged act. The alleged acts have b....
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....ff working there. Shri Pradeep Kumar and Shri Sandeep Kumar have not retracted their statements till date. Shri Kamal Virmani is mentioned to have admitted that he was dealing in the sale of imported ACs. He was aware of the fact that Shri Ajit Singh Chadha had imported restricted gases like R-22 several times. He confirmed that the said R-22 gas was sold through Shri Vijay Sharma. The fact of selling R-22 gas was admitted by Shri Vijay Sharma also. 25. Shri Naresh Kumar Sharma, had an active role in the transactions of cigarettes and it was established from the statement of Shri Umesh alias Renku in which he inter alia stated that he had delivered 120-122 cartons of cigarettes from B-1/36, Budh Vihar, Phase-I godown to a transport company during 30.05.2012 to 01.06.2012. Shri Naresh Kumar was present at the said transport company and he himself got the biliti (bill) prepared for the same. DRI recovered 316 R-22 gas cylinders from the godown of Shri Dilip Singh Jain. As per version the same were purchased in cash from Shri Vijay Sharma without any legal document. He had bought 160 cylinders of R-22 gas from Vijay Sharma. Import of R-22 is restricted as the R-22 is also an Ozone ....
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....ho was dispatching and storing the cigarettes illegally imported by Shri Rohit Sakhua and Ajit Chadha. 28. Ld.DR has relied upon the decision of Hon'ble Supreme Court in the case of Naresh J.Sukhawani vs. Union of India reported in 1996 (83) ELT 258 (SC) wherein it was held that it must be remembered that the statement made before the Customs officials is not a statement recorded under section 161 of the Criminal Procedure Code, 1973. Therefore it is a material piece of evidence collected by Customs officials under section 108 of the Customs Act. 29. Finally, it is impressed upon that present is the case where fraud has been committed to smuggle restricted goods. Here the liability has rightly been confirmed and also there is no infirmity in imposition of penalty on all the appellants. The Apex Court's decision in the matter of M/s.Munjal Showa Ltd. vs. Commissisoner-2022 (382) ELT 145 (SC) is relied upon wherein it was held that "9. In that views of the matter and on the principle that fraud vitiates everything and such forged/fake DEPB licences/scrips are void ab initio, it cannot be said that the Department acted illegally in invoking the extended period of limita....
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....anhola, Nangloi godown along with Shri Ajit Singh Chadha when goods from the said eight containers were being de-stuffed there. It is also on record that both them tried to avoid investigation they lied about their whereabouts even associates, employees and relatives feigned ignorance regarding whereabouts. They remained absconded for almost two months with an intention to avoid investigation. They also alleged that they obtained fake sim cards/mobile connection in the name of their employees (Shri Arun Lal and Suraj) and he also obtained Mobile connection on the basis of ID proof of (Pritam Singh). It has been found that forged/bogus photo identity card was submitted to the shipping line for obtaining the delivery orders and forged/bogus indemnity bonds were executed had been held forged and bogus. (5) Penalties on all appellants, who had been held involved in the alleged clandestine removal of the goods from the Customs area on the basis of forged documents and forged illegal import of prohibited goods had been imported under sections 112 and 114AA of the Customs Act, 1962. 33. From the facts of the case, we observe that the department got initially a specific intelligence ....
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.... Shri Bharat Vidhuri, Proprietor of M/s.Bharat Transport admitted that he arranged transportation of eight containers out of ICD TKD on the instructions of his client Shri Sandeep Kumar and his company Supervisor Karandeep Singh and that all of them got destuffed at Nangloi. The information given to him by the respective drivers. Karandeep corroborated the said statement except about the name of the person who handed over the manual customs gate passes. As per Vidhuri, it was Ravi but as per Karandeep it was Raju. But corroboratively it is mentioned that the containers were taken out from ICD TKD on the basis of manual gate passes. As already observed that forensic examination of these manual gate passes has proved that those were bear forged and fake signatures and stamps. Drivers Chutan and Laxmi Das corroborated that containers got destuffed at godown in Nangloi. Based on these statements, godown at Nangloi got searched. Goods seized and godowns sealed vide respective panchnama dated 30.05.2012. 36. DRI further received the information from the office of Commissioner of Customs, ICD,TKD. Om 31.05.2012 that statement of one of the mastermind, Ajit Singh Chadha has been record....
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....l Virmani, Prorietor of M/s.Gaurav Enterprises and Vijay Kumar Sharma, Proprietor of M/s.Vijay Trading Co. admitted for facilitated in the storage, distribution and sale of illegally imported R-22 cylinders and air conditioners. 43. Shri S.K.Singh acknowledged about using mobile number was obtained fraudulently by Shri Ajit Singh Chadha in the name of Shri Pritam Singh to facilitate clandestine removal of the goods. 44. Shri R.K.Mahapatra, Junior Executive, CONCOR, ICD,TKD and Shri S.K.Dubey, Senior Executive (Commercial & Operation), CONCOR, ICD, TKD, New Delhi had issued the CONCOR 'job orders' without verifying the particulars of the bills of entry, most importantly the port to which the bills of entry pertained to. Though he pleaded it to be bonafide mistake made on the basis of Customs gate passes shown 45. K Line Singapore Pte Ltd. is observed to have colluded with shipper and abetting the impugned import of goods. 46. Shri Vinod Kumar, Labour Contractor, admitted that he provided labourers for unloading of said eight containers at Nangloi at instance of Mr.Rohit Sakhuja as he was doing business of loadinig and unloading for him for last 10-12 years. From his stat....
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....Sakhuja represented that Air Conditioners, LEDs and oil heaters were legally imported by him from time to time. 49. Vide the said letter, Shri Rohit Sakhuja also submitted that a chart purportedly showing correlation of detained/seized goods with bills of entry pertaining to M/s.Star Aircon and M/s.M.C.Overseas. Scrutiny of the said chart reveals that in most of the cases, the model nos.declared in the invoices and the corresponding bills of entry are incomplete and hence cannot be correlated with the goods detained/seized in the godowns. For example, in bill of entry no.6771348 dated 09.05.2012 and its invoice, the model no. of split O General air conditioner has been declared as "AOG18A". In the related packing list, the outdoor and indoor unit model nos. have been mentioned as "AOGR18AETH/ASGA18AET and AOGR18AAT/ASGA18ABCW detained/seized at the various godowns. Hence, it appears that in the bills of entry of M/s.M.C.Overseas and M/s.Star Aircon the complete model nos. of the air conditioners were not declared presumably to undervalue/misdeclare the goods. Hence, these cannot be correlated with the goods detained/seized at the various godowns wherein the complete model nos. h....
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....a and Ajit Chadha have no legality. Otherwise also as observed above, there is corroborative evidence on record to hold that the correctness of finding in the order under challenge. 52. We further observe there is no denial by the appellant to following facts also: (1) Shri Rohit Sakhuja and Shri Ajit Chadha were engaged in the business of import and sale of air conditioners, LED and sale of refrigerators under the name and style of M/s.Saitel, Karol Bagh, New Delhi. (2) In the above investigation, DRI recorded statement of 120 persons and collected voluminous documents. (3) Five godowns got searched and examined by the DRI on 30.05.2012, 31.05.2012 and 7.6.2012. Searches lead to the recovery of such number of cylinders of R-22 gas, cigarettes and air-conditioners as has been tabled meticulously by the adjudicating authority below. (4) Live consignment of Rohit Sakhuja as were examined by ICD, Bhalbhgarh and cleared on provisional basis were also found to havfe air conditioners and TVs imported in the name of M/s. M.C.Overseas and Star Aircon with Shri Manu Chopra as representative proprietor. As observed above, both of them (Rohit Sakuja and Ajit Chadha) acknowledge....