TaxTMI 
TaxTMI 
2024 (6) TMI 198
X X X X Extracts X X X X
X X X X Extracts X X X X
....t or export on behalf of their various clients. The appellant was following a practice of receiving various documents from his clients and then sending such documents to the CHA/CB in order to get the consignments cleared out of customs control. Similarly, in the present case of import of trolley bags by M/s Ganesh Enterprises, Dombivali (East), Mumbai vide Bill of Entry No. 9159911 dated 07.05.2015, the appellant had received the documents of import from one Shri Kanaiya Hurbada and forwarded the same to M/s P.N. Shipping Agency, CHA/CB for clearing the imports. 2.2 On the basis of specific intelligence, the Directorate of Revenue Intelligence (DRI) had examined the imported goods covered by B/E No. 9159911 dated 07.05.2015 imported in container No. BAXU 5009940 brought from Jebel Ali. The examination of such goods resulted in recovery of 20,445 boxes of DJARUM BLACK and GUDANG GARAM brand foreign origin cigarettes totaling to 48,08,880 cigarette sticks concealed by camouflaging 423 boxes of trolley bags. The total value of such smuggled foreign origin cigarettes in the present case was valued at Rs.3,42,96,990/-. Accordingly, such goods involving violations of Customs law were....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of penalty, and imposing penalty only on the basis of statements recorded under Section 108 of Customs Act, 1962 does not sustain the order imposing penalty on the appellant. Hence, they pleaded that their appeal be allowed. 4. On the other hand, learned Authorized Representative (AR) pointed out that the appellant received the import documents from a third person viz. Shri Kanaiya Hurbada, who is neither the importer or his authorised representative; the appellant tried calling up the importer on his mobile phone and despite not getting their response, still without verifying the existence of importer went ahead for clearance of foreign origin cigarettes under the guise of trolley bags; the appellant did not even check whether the person from whom he received documents is the importer or an authorized person of importer, before handling the consignment; for simple job of uploading the check list for generation of bill of entry the appellant paid Rs.10,000/- to the CHA/CB. Further, during search of the appellant's premises incriminating documents such as blank and signed letter head of importer M/s Ganesh Enterprises along with rubber stamps of M/s Ganesh Enterprises and it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on. The CHA's role was restricted to merely filing the Bill of Entry and not with the clearance work of assessment and examination which was to be carried out by the Shri Kanaiya Hurbada so as to ensure smooth clearance of the subject contraband. The CHA was arranged by Shri Kanaiya through Shri Mukthar Shaikh of M/s Fast Forwards Logistics. The delivery order was to be obtained by Shri Mukthar Shaikh as per Shri Kanaiya Hurbada's instructions in the manner which would not leave any trail. For this purpose, Shri Mukthar Shaikh was to make payment of the shipping line through NEFT after depositing the cash given to him by Shri Kanaiya Hurbada.... C) In view of the above, I find that some unknown/identified personnel is trying to smuggle the cigarettes in the guise of trolly bags. Since, the Cigarettes were not declared in the IGM and Bill of Entry, I find the said 20,445 boxes of total value Rs.3,36,62,160/- is liable for confiscation under section 111(f), 111(l) and 111(m) of the Customs Act, 1962. I also find that 423 boxes of Trolley bags have been used to camouflage cigarettes therefore, I hold that the seized 423 boxes of Trolley liable for confiscation under ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....five thousand rupees], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined; (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty 19[not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty 20[n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lant. Furthermore, investigation also brought up the various documents, letter heads, authorisation seals of importer, were covered from the appellant's premises which clearly indicated that the appellant was playing an active role in clearing the contraband by using IEC of importer in an illegal manner. Thus, in terms of legal provisions under Section 112(a) ibid, this case fits in the four corners of the situations mentioned in such provision where the proper authority could impose penalty. Further, the value of smuggled foreign origin cigarettes at Rs.3,32,62,160/- which were attempted to be cleared by various persons involved in the offence including the appellant is very high and significant. Thus, I find that the above acts done by the appellant clearly prove that it is a planned action on their part to conceal the smuggled foreign origin cigarettes, right from the stage of preparation of documents for filing bill of entry, filing the declarations including B/E, manner of payment of customs duties and other dues etc. so that the act of smuggling is not detected by customs authorities. 11.3 Though it is not specifically coming out from the facts of the case, by corollary it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty under Section 112(a) of the Customs Act, 1962. The relevant paragraphs of the said order are as follows: "5. I am constrained to note that the sufficient opportunities had been given to the appellant, and more specifically on 10-5-2022, 15-3-2023, 27- 7-2023 and 18-12-2023 for the appellant to be present and plead his case. Even today, none had appeared for the appellant. Thus, it is very clear that the appellant is not interested in pursuing the legal remedy despite he being aware of the proceedings before the Tribunal as they had appeared earlier on two occasions before the Tribunal. Hence, I take up the case on merits of the case and with the consent provided by the learned AR for the Revenue. 6. This is a case of smuggling of foreign origin cigarettes along with cosmetics totally valued at Rs. 1,10,77,667/- and the appellant was one of the noticee for having participated in the said smuggling activity. I also find that the personal hearing opportunities have been given by the original authority to the appellant on 20-8-2018, 22-11-2018 and 3-12-2018 and decided the issue on merits. In view of the detailed examination of the case, role played by the appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(i) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on respondents 2, 3 and 4. 47. The manipulative roles of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts leading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly wilful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commissioner is restored." 13.1 From the above detailed discussions and analysis, in answering the question of imposition of penalty on the appellant for the role of Proprietor of freight forwarder, under Section 112(a) ibid, I had come to the conclusion that factual matrix of the case attract imposition of penalty under Section 112(a) and the same is rightly applicable in a situation where the appellants either as a freight forwa....